Criminal Law Commons^™

Here Comes The Judge: A Model For Judicial Oversight And Regulation Of The Brady Disclosure Duty, Cynthia Jones

Scholarly Articles in Law Reviews & Journals

Under the current state of the law, there is no mechanism in place to ensure that a criminal defendant receives information in the exclusive possession of the government that negates guilt, undermines the strength of the government's case, or reduces the sentence that could be imposed. Whenever a prosecutor wants to do so, she can suppress this favorable information and prevent the court and the defense from ever learning of its existence. Without oversight and with very little accountability, prosecutors have been vested with the power to determine whether and when to disclose favorable evidence to the defense. Although many …

Corporate Culture And Competition Compliance In East Asia, Jingyuan Ma, Mel Marquis

South Carolina Journal of International Law and Business

No abstract provided.

Trouble Counting To Three: Circuit Splits And Confusion In Interpreting The Prison Litigation Reform Act's Three Strikes Rule, 28 U.S.C. Sec. 1915(G), Molly Guptill Manning

Articles & Chapters

No abstract provided.

Agency And Insanity, Stephen P. Garvey

Cornell Law Faculty Publications

This Article offers an unorthodox theory of insanity. According to the traditional theory, insanity is a cognitive or volitional incapacity arising from a mental disease or defect. As an alternative to the traditional theory, some commentators have proposed that insanity is an especially debilitating form of irrationality. Each of these theories faces fair-minded objections. In contrast to these theories, this Article proposes that a person is insane if and because he lacks a sense of agency. The theory of insanity it defends might therefore be called the lost-agency theory.

According to the lost-agency theory, a person lacks a sense of …

Convictions Of Innocent People With Intellectual Disability, Sheri Johnson, John H. Blume, Amelia Courtney Hritz

Cornell Law Faculty Publications

In Atkins v. Virginia, the Supreme Court held that executing individuals with intellectual disability violates the Cruel and Unusual Punishment Clause of the Eighth Amendment. In addition to concerns over culpability and deterrence, the Court’s judgment in Atkins was informed by the heightened “risk of wrongful execution” faced by persons with intellectual disability. This essay explores that question both anecdotally and quantitatively, hoping to illuminate the causes of wrongful conviction of persons with intellectual disability. We provide examples from our experiences in the Cornell Death Penalty Clinic and cases brought to our attention by defense attorneys. We also present data …

Cartel Criminalization In Europe: Addressing Deterrence And Institutional Challenges, Francesco Ducci

Vanderbilt Journal of Transnational Law

This Article analyzes cartel criminalization in Europe from a deterrence and institutional perspective. First, it investigates the idea of criminalization by putting it in perspective with the more general question of what types of sanctions a jurisdiction might adopt against collusive behavior. Second, it analyzes the institutional element of criminalization by (1) discussing the compatibility of administrative enforcement with the potential de facto criminal nature of administrative fines under European law and (2) evaluating the trade-offs between an administrative and a criminal model of enforcement. Although a "panoply" of sanctions against both corporations and individuals may be necessary under a …

The Perpetuation Of Mass Incarceration: Analyzing Systemic Effects Of The U.S. Penal System, Lillian Barreto

Theses and Dissertations

This paper is divided into four parts, Part I. Perpetuation of a Disparate System , Part II. Perpetual Marginalization , Part III. My Personal Research and Part IV. Moving Forward . Part I serves to show the pervasive racial disparities throughout the criminal justice system and how these disparities portray a system which discriminates primarily against poor men of color. Part II shows how this community is disadvantaged in various parts of their social, economic and political lives because of the extent of punitivity and criminalization. It explains the way these disadvantages translate to men of color being discriminated against …

California As A “Blue-Print’ For Progressive Immigration Reform?: Uncovering Racial Liberalism To Expose Reconfigured Anti-Migrant Hegemony, Edith Jaicel Ortega

Scripps Senior Theses

Using the frames of analysis and language of political whiteness and anti-migrant hegemony, this paper examines the narrative of liberal immigration reformers transforming California’s political landscape within the period of 1994 to 2017. Taken as case studies the following articles of legislation are analyzed: Proposition 187 in 1994, the California Dream Act in 2010, the Trust Act in 2014, up to the present Senate Bill 54 in 2017. The paper finds that while California has experienced a recognizable shift in racial liberalism in rhetoric and legislation, its overall policy continues to work within the framework of anti-migrant hegemony that functions …

Punishing Criminals For Their Conduct: A Return To Reason For The Armed Career Criminal Act, Sheldon Evans

Faculty Publications

For over twenty-five years, the Armed Career Criminal Act has produced inconsistent results and has taxed judicial economy perhaps more than any other federal sentencing mechanism. This recidivist sentencing enhancement is meant to punish habitual criminals based on their numerous past crimes, but the Supreme Court’s application of the Act too often allows habitual criminals to escape the intended enhancement on a legal technicality. This comes as a result of the Court’s categorical approach, which punishes habitual criminal offenders based on the statutory elements of their past crimes rather than the conduct of their past crimes.

In an effort to …

Parallel Enforcement And Agency Interdependence, Anthony O'Rourke

Journal Articles

Parallel civil and criminal enforcement dominates public enforcement of everything from securities regulation to immigration control. The scholarship, however, lacks any structural analysis of how parallel enforcement differs from other types of interagency coordination. Drawing on original interviews with prosecutors, regulators, and white-collar defense attorneys, this Article is the first to provide a realistic presentation of how parallel enforcement works in practice. It builds on this descriptive account to offer an explanatory theory of the pressures and incentives that shape parallel enforcement. The Article shows that, in parallel proceedings, criminal prosecutors lack the gatekeeping monopoly that traditionally defines their relationships …

Rico Run Amok, John K. Cornwell

SMU Law Review

In 1970, Congress enacted RICO to eradicate organized crime in America. To enlist the help of private citizens in this effort, the statute included civil provisions providing treble damages for plaintiffs who proved that they were injured by a pattern of racketeering activity. As the decades passed, civil RICO dramatically expanded its reach, addressing misconduct in a diverse array of contexts, including high-profile suits against the Clinton Foundation and Trump University. This Article examines this evolution, focusing on three factors that have figured prominently in civil RICO’s runaway growth: the broad interpretation of what constitutes a RICO “enterprise”; the flexibility …

The Right To Two Criminal Defense Lawyers, Bruce A. Green

Faculty Scholarship

No abstract provided.

Building Victim-Led Coalitions In The Pursuit Of Accountability, Diane Orentlicher

Scholarly Articles in Law Reviews & Journals

Assurances ofvictim participation in proceedings before the International Criminal Court and Extraordinary Chambers in the Courts of Cambodia have been seen as a welcome corrective to the flawed model of earlier tribunals. The first such tribunal created since the postwar period, the International Criminal Tribunal for the former Yugoslavia (ICTY), was established by the UN Security Council in May 1993 without even consulting those who survived the atrocities that gave rise to its creation, the majority of which took place in Bosnia-Herzegovina. Nor were victims formally incorporated into the ICTY's work except for those who provided testimony and other evidence. …

How Can I Reconcile With You When Your Foot Is On My Neck: The Role Of Justice In The Pursuit Of Truth And Reconciliation, Olwyn Conway

Scholarly Articles in Law Reviews & Journals

In Ferguson, a wound bleeds. For 108 days, we have been in a state of prolonged and protracted grief.... We have had no choice but to cling together in hope, faith, love and indomitable determination to capture that ever-escaping reality of justice ... we find ourselves reinjured, continually heartbroken, and robbed of even the remote possibility of judicial resolution. For 108 days, we have continuously been admonished that we should "let the system work," and wait to see what the results are. The results are in. And we still don'thavejustice. . . . We, altogether, bound up in a system …

2017 Symposium Discussion: The Life Of An Immigration Attorney, Cori Alonso-Yoder

Scholarly Articles in Law Reviews & Journals

No abstract provided.

Truth, Lies, And The Confrontation Clause, Emily Spottswood

University of Colorado Law Review

This Article examines and critiques the recent revival of the Sixth Amendment's Confrontation Clause as a means of improving the quality of criminal trials. The Clause is best interpreted as a tool that aims to reduce the likelihood of wrongful convictions by limiting the ability of prosecutors and witnesses to concoct believable but false stories without fear of their deception being uncovered through crossexamination. Unfortunately, modern doctrine has come unmoored from this foundation. Requiring confrontation of available prosecution fact witnesses serves a useful (if narrow) evidentiary function in that it provides a check against an unethical prosecutor who might otherwise …

Risky Sexual Behavior -- The "Broken Windows" Of Sexual Assault: A Proposal For Universities To Incorporate Targeted Intervention To Bridge The Gap Between Sexual Assault Prevention And Response, Dominic Angiollo

American University Journal of Gender, Social Policy & the Law

No abstract provided.

The Effects Of The War On Drugs On Black Women: From Early Legislation To Incarceration, Tiffany Simmons

American University Journal of Gender, Social Policy & the Law

No abstract provided.

Treatment Of Domestic Terrorism Cases: Class And Mental Health In The Criminal System, Yolanda C. Rondon

American University Journal of Gender, Social Policy & the Law

No abstract provided.

Pressing Pause: Tolling Statutes Of Limitations For Sex Offenses While Rape Kits Remain Untested, Hunter Grolman

American University Journal of Gender, Social Policy & the Law

No abstract provided.

Rethinking The Effects Of A Guilty Plea On The Right To Challenge One's Statute Of Conviction, Hannah Roberts

American University Journal of Gender, Social Policy & the Law

No abstract provided.

Reading Between The Crimes: Online Media’S Representation Of Aboriginal And Torres Strait Islander People’S Interaction With The Criminal Justice System In Post-Apology Australia, Jonathan Cannon

Theses: Doctorates and Masters

Australian research confirms that Aboriginal and Torres Strait Islander people experience high levels of social inequality, racism and injustice. Evidence of discrimination and inequality is most obvious within the criminal justice system where they are seriously over-represented. The Australian news media plays a large part in reinforcing Aboriginal and Torres Strait Islander inequality, stereotypes and racist ideology within specific situations such as the Northern Territory Emergency Response and the Redfern riots. This study widens the scope from how the media reports a single criminal justice event to how the media reports Aboriginal and Torres Strait Islander people’s interaction with the …

Public Requitals: Corrective, Retributive, And Distributive Justice, Bailey Kuklin

Faculty Scholarship

No abstract provided.

Legal Vs. Factual Normative Questions & The True Scope Of Ring, Emad H. Atiq

Cornell Law Faculty Publications

When is a normative question a question of law rather than a question of fact? The short answer, based on common law and constitutional rulings, is: it depends. For example, if the question concerns the fairness of contractual terms, it is a question of law. If it concerns the reasonableness of dangerous risk-taking in a negligence suit, it is a question of fact. If it concerns the obscenity of speech, it was a question of fact prior to the Supreme Court's seminal cases on free speech during the 1970s, but is now treated as law-like. This variance in the case …

Prosecution Of Child Pornography—The One-Eyed Judge By Michael A. Ponsor: A Book Review, Beth Cohen, Pat Newcombe

Faculty Scholarship

The safeguarding and protection of children in society is crucial. Yet, children remain a vulnerable population; they are abused, neglected, trafficked, and exploited in numerous ways. In his new book, The One-Eyed Judge, Michael Ponsor, Senior United States District Court Judge for the District of Massachusetts, Western Division, who has presided over numerous child pornography cases, explores the complexities and legal implications of child pornography and exploitation.

Access To Justice: Accelerating The Abandonment Of Fgm/C, Gretchen Kail

Cardozo Journal of Conflict Resolution

This Note discusses the role comprehensive legislation traditionally plays through a top-down approach and proposes the use of bottom-up approaches to better leverage national laws and new legal norms to support collective societal action. The discussion views legislation and FGM/C through a social norm lens: "a comprehensive, multi-sectorial, culturally sensitive approach that incorporates a social perspective to impact collective change."

Section II of this Note defines FGMIC as a health issue, a human rights violation, and a social norm. Section III discusses relevant international and regional human rights frameworks; state obligations; divergent views on the effects and usefulness of national …

The Devil's Advocate Also Wears Prada: The Impracticality Of Adr In Counterfeiting Disputes And The Prospect Of Arbitration, Anan Kahari

Cardozo Journal of Conflict Resolution

The purpose of this Note is to posit that arbitration, tailored for counterfeiting disputes, could potentially serve as a reliable method for fashion companies to combat counterfeiting. Part II discusses the background of IP rights and the relationship between counterfeiting and fashion. Part III highlights the traditional advantages of ADR and how some of those advantages may become disadvantages when applied to counterfeiting disputes. Lastly, Part IV argues that arbitration can be designed to be applicable to counterfeiting disputes described in this Note.

Rethinking The Boundaries Of “Criminal Justice", Benjamin Levin

Scholarship@WashULaw

This review of The New Criminal Justice Thinking (Sharon Dolovich & Alexandra Natapoff, eds.) tracks the shifting and uncertain contours of “criminal justice” as an object of study and critique. Specifically, I trace two themes in the book: (1) the uncertain boundaries of the “criminal justice system” as a web of laws, actors, and institutions; and (2) the uncertain boundaries of “criminal justice thinking” as a universe of interdisciplinary scholarship, policy discourse, and public engagement. I argue that these two themes speak to critically important questions about the nature of criminal justice scholarship and reform efforts. Without a firm understanding …

The Unexpected Scope Of The Cfaa: And How Netflix Users Could Be Committing A Federal Crime, Michael Levy

Cardozo International & Comparative Law Review

The Ninth Circuit's broad interpretation of the Computer Fraud and Abuse Act (CFAA) in United States v. Nosal II criminalizes everyday activities like password sharing, undermining the Act's original purpose to prevent hacking. The court ruled that accessing a computer after authorization has been revoked constitutes a violation, even if the access is for innocuous purposes. This interpretation disproportionately benefits large service providers, allowing them to suppress legitimate user claims and exposing millions of Americans to potential prosecution for common online practices.

The Violence Against Women Act, Implicit Bias, And Judicial Training, Lorena Espino-Piepp

Cardozo Journal of Equal Rights & Social Justice

The note argues that the Violence Against Women Act (VAWA) must be amended to include implicit bias training for Family Court judges and staff to address the systemic barriers faced by undocumented Latina immigrant women in accessing justice. These women often face compounded discrimination based on race, ethnicity, and immigration status, which undermines their ability to obtain immigration relief through VAWA protections. The author contends that without such training, the judicial system perpetuates inequities, as judges and court personnel rely on stereotypes that disproportionately harm women of color.