Criminal Law Commons^™

Judging The 11 September Terrorist Attack, Mark A. Drumbl

Scholarly Articles

Not available.

I Want A Black Lawyer To Represent Me: Addressing A Black Defendant's Concerns With Being Assigned A White Court-Appointed Lawyer, Kenneth P. Troccoli

Scholarly Articles in Law Reviews & Journals

"I want a Black lawyer to represent me." These are the first words you hear after you introduce yourself to your new client. You have been appointed to represent this man on a criminal charge. You are white. He is Black. You answer that you are an experienced criminal lawyer and will represent him to the best of your ability, regardless of his or your race. He responds that he too is experienced with the criminal justice system-a system that targets Black men, like himself, for prosecution far more than whites, that sentences Black men to prison more frequently and …

Past Violence, Future Danger?: Rethinking Diminished Capacity Departures Under Federal Sentencing Guidelines Section 5k2.13, Eva E. Subotnik

Faculty Publications

Under section 5K2.13 of the Federal Sentencing Guidelines, a judge is permitted to reduce a defendant's sentence on the grounds of diminished capacity. Most courts construing this provision have ruled that defendants whose offenses involved violence or the threat of violence are ineligible for a reduction in sentence. This Note argues that such an interpretation, which makes past violence a proxy for predicting future dangerousness, is problematic. Medically or psychologically treated, defendants may no longer pose a danger to society. This Note urges that, in accordance with section 5K2.13's language and history, courts should focus more broadly on whether the …

Punishment Theory: Moral Or Political?, Guyora Binder

Journal Articles

This article argues that the justification of punishment is best conceived as a problem of political theory rather than moral philosophy. Noting the familiar charge that utilitarianism permits framing the innocent, it argues that retributivism is equally vulnerable to the charge that it permits lynching the guilty. It argues that both critiques unfairly attribute lawlessness and dishonesty to the respective punishment theories. As a result, they mischaracterize both as theories about what individuals should do, rather than what acts legitimate government should authorize. In so doing, they disregard how committed the founders of the respective theories were to the rule …

The Rhetoric Of Motive And Intent, Guyora Binder

Journal Articles

This article offers a critical analysis of the traditional maxim that motive is irrelevant to criminal liability. It retraces the history of this principle to show how its meaning has changed and its validity has declined over time. Originally promoted by reformers, the irrelevance of motive maxim derived meaning from their efforts to codify criminal law. In this context, the irrelevance of motive stood for two related reforms: (1) legislators should condition criminal liability on expectations of harm rather than desires, and (2) courts should require proof of statutory mental elements. With the success of codification, however, the irrelevance of …

The International And Comparative Criminal Trial Project, Mark Findlay

Research Collection Yong Pung How School Of Law

The International Criminal Trial Project (ICTP) has been in operation within the Centre for Legal Research (CLR), Nottingham Law school since January 2000. To date the project has succeeded in establishing a global network of scholars researching international and comparative criminal justice. The ICTP examines and compares trial processes and practice in a variety of local, regional and global contexts. The research incorporates particular evaluations of issues and relationships essential to the operation of trial process in different jurisdictions and stages of development. From the focus on the trial the project is producing knowledge about international and comparative criminal justice. …

Opting For Real Death Penalty Reform, James S. Liebman

Faculty Scholarship

The capital punishment system in the United States is broken. Studies reveal growing delays nationwide between death sentences and executions and inexcusably high rates of reversals and retrials of capital verdicts. The current system persistently malfuinctions because it rewards trial actors, such as police, prosecutors, and trial judges, for imposing death sentences, but it does not force them either to avoid making mistakes or to bear the cost of mistakes that are made during the process. Nor is there any adversarial discipline imposed at the trial level because capital defendants usually receive appointed counsel who either do not have experience …

Unreasonable Probability Of Error, Jed Handelsman Shugerman

Faculty Scholarship

In Strickland v. Washington, the Supreme Court sought to create a uniform standard to guarantee effective assistance of counsel to criminal defendants, to "ensure a fair trial," and to assure the reliability of "a just result."' Justice O'Connor's majority opinion created a two-pronged test for overturning a trial verdict: deficient performance and resulting prejudice. The Court explicitly established a difficult burden for proving deficient performance,² but set a moderate standard for prejudice as the "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient …

Essential Elements, Nancy J. King, Susan R. Klein

Vanderbilt Law Review

For well over a century the United States Supreme Court has debated who has final authority to define what is a "crime" for purposes of applying the procedural protections guaranteed by the Constitution in criminal cases. After numerous shifts back and forth from judicial to legislative supremacy,' the Court has settled upon a multi-factor analysis for policing the criminal-civil divide, an analysis that permits courts to override legislative intent to define an action as civil in the rare case where the action waddles and quacks like a crime. This tug-of-war over the finality of legislative labels in defining crime and …

Innocence Protection Act: Death Penalty Reform On The Horizon, Ronald Weich

All Faculty Scholarship

The criminal justice pendulum may be swinging back in the direction of fairness. The Innocence Protection Act of 2001, introduced in both the Senate and the House of Representatives earlier this year, promises meaningful reforms in the administration of capital punishment in the United States.

Unlike previous slabs at reform, the Innocence Protection Act (lPA) has a real chance to become law because it commands unusually broad bipartisan support. The Senate bill (S. 486) is sponsored by Democrat Pat Leahy of Vermont and Republican Gordon Smith of Oregon. The House bill (H.R. 912) is sponsored by Democrat Bill Delahunt of …

Voluntary Intoxication In Florida: Public Policy Versus Due Process And Why Florida's Intoxication Statute Cannot Withstand A Constitutional Challenge, Michael L. Elkins

St. Thomas Law Review

This comment examines the substance of the opinions in Egelhoff and juxtaposes the Florida statutory scheme against the proper constitutional analysis. The Egelhoff majority has done little to provide a workable constitutional backdrop from which other state statutes banning evidence of voluntary intoxication may be categorized. Part II of this comment provides the historical background for the voluntary intoxication defense. Part I initially examines the factual and legal background of the Egelhoff case as set forth by the Montana Supreme Court. Part IV then provides an analysis of the opinions authored by the United States Supreme Court. This section will …

Voluntariness With A Vengeance: Miranda And A Modern Alternative, Jonathan B. Zeitlin

St. Thomas Law Review

One of the most famous opinions in American jurisprudence is that of the United States Supreme Court in the case of Miranda v. Arizona. The Court's prophylactic rule in Miranda has been followed in both state and federal courts with little derogation for over thirty years. On February 8, 1999, in Dickerson v. United States, the United States Court of Appeals for the Fourth Circuit ignored Miranda, turning instead to 18 U.S.C. § 3501, a relatively obscure federal statute enacted in 1968 in response to the Court's decision in Miranda. The United States Supreme Court granted certiorari and heard oral …

The Right To Kill In Cold Blood: Does The Death Penalty Violate Human Rights, Alan Ryan

Cleveland State Law Review

The essence of the argument is this: all punishment must be inflicted in cold blood; whatever damage we do to others not in cold blood is not punishment but self-defense or revenge; what we have a right to inflict in cold blood is a question of the rules of just social cooperation and especially the justice of the sanctions required to sustain those rules; it is here argued that the fundamental principle is that we may inflict whatever punishment is necessary to deter wrongdoing and not disproportionate to the offence; I do not dismiss 'pure' retribution as a goal of …

Criminal Law: Guilty Of Something: Gilson V. State And The Death Penalty For Omission In Oklahoma, Carla Mullins

Oklahoma Law Review

No abstract provided.

'The Question Is Which Is To Be Master - That's All': Cunningham, Claiborne, Rita And The Sixth Amendment Muddle, Frank O. Bowman Iii

Faculty Publications

Three things are clear from the Supreme Court's opinion in Cunningham v. California, in which the Court struck down California's sentencing law as violative of the Sixth Amendment, and from the briefs in the pending cases involving post-Booker federal sentencing, Claiborne v. United States and Rita v. United States. First, the Supreme Court has plunged Sixth Amendment sentencing law deep down the rabbit hole. Second, both the government and petitioners in Claiborne and Rita have adopted indefensible positions. Third, neither the parties nor the amici in Rita and Claiborne have offered the Court any real help in crafting a sensible …

Matter Of Roldan: Expungement Of Conviction And The Role Of The States In Immigration Matters, Nathalie A. Bleuze

University of Colorado Law Review

No abstract provided.

The Problem With Innocence, Margaret Raymond

Cleveland State Law Review

Pursuing justice for the wrongfully convicted is a profoundly meaningful goal. Yet the innocence movement may have unintended consequences for the criminal justice system. This paper explores some of these, and argues that the focus on factual innocence may create certain distortions in the way that actors in the criminal justice system---the "ones left behind"--perceive their obligations and allegiances. It may convince the public, including policymakers, that the system works effectively to reveal and redress wrongful convictions. It may convince prospective jurors that it is-or should be-the defendant's burden to prove innocence. It may convince potential criminal defense clients that …

Full Legal Representation For The Poor: The Clash Between Lawyer Values And Client Worthiness, Michelle S. Jacobs

UF Law Faculty Publications

This article seeks to expand the scope of our understanding of values and their connection to the work of poverty lawyers. The article explores the literature on poverty and moral worthiness. In order to bring clarity to the discussion, it examines social science research on defining "values" and detailing how they can affect behavior. Prof. Jacobs describes the reactions of clinical students to a classroom exercise, which asked them to describe the legal representation they would provide to hypothetical clients. This article describes how the link between students' values and broader societal beliefs affect the practices of the bar and …

Lethal Elections: Gubernatorial Politics And The Timing Of Executions, Jeffrey D. Kubik, John R. Moran

Center for Policy Research

We document the existence of a gubernatorial election cycle in state executions, suggesting that election year political considerations play a role in determining the timing of executions. Our analysis indicates that states are approximately 25 percent more likely to conduct executions in gubernatorial election years than in other years. We also find that elections have a larger effect on the probability that an African American defendant will be executed in a given year than on the probability that a white defendant will be executed, and that the overall effect of elections is largest in the South. These findings raise concerns …

No Equal Justice, David Cole

Georgetown Law Faculty Publications and Other Works

I argue that while our criminal justice system is explicitly based on the premise and promise of equality before the law, the administration of criminal law—whether by the officer on the beat, the legislature, or the Supreme Court—is in fact predicated on the exploitation of inequality. My claim is not simply that we have ignored inequality’s effects within the criminal justice system, nor that we have tried but failed to achieve equality there. Rather, I contend that our criminal justice system affirmatively depends on inequality. Absent race and class disparities, the privileged among us could not enjoy as much constitutional …

It's Time To Put The Military's Death Penalty To Sleep , Michael I. Spak

Cleveland State Law Review

Part I will focus on the death penalty in the civilian sector of the United States. It begins with a brief history of and an introduction to death penalty laws in the United States. A critical examination of the primary arguments used to justify the death penalty follows. Part I next offers a brief overview of other independent reasons for the abolition of the death penalty. After having concluded that the application of the death penalty is unfair in the civilian sector and should thus be abolished, the article will then shift its focus to the death penalty in the …

Criminal Theory In The Twentieth Century, George P. Fletcher

Faculty Scholarship

The theoretical inquiry into the foundations of criminal law in the twentieth century, in both civil and common law traditions, is assayed by the consideration of seven main currents or trends. First, the structure of offenses is examined in light of the bipartite, tripartite, and quadripartite modes of analysis. Second, competing theories of culpability – normative and descriptive – are weighed in connection with their important ramifications for the presumption of proof and the allocation of the burden of persuasion on defenses. Third, the struggle with alternatives to punishment for the control and commitment of dangerous but non-criminal persons is …

A Predictive Framework For The Effectiveness Of International Criminal Tribunals, James B. Griffin

Vanderbilt Journal of Transnational Law

This Note examines international criminal tribunals and analyzes the factors that can govern the level of their effectiveness. The historical background in this area is essential, for one of the main points of the Note is that international criminal tribunals cannot be detached from the political circumstances that create them and enforce their verdicts if those verdicts are to be enforceable at all.

The Note begins with an analysis of the International Military Tribunal at Nuremberg, and compares it to its contemporary counterpart, the International Military Tribunal at Tokyo. The Note then makes a similar analysis of the recent International …

Essential Elements, Nancy J. King, Susan Riva Klein

Vanderbilt Law School Faculty Publications

The Court has struggled for well over a century with the issue of who has final authority to define what is a "crime" for purposes of applying procedural protections guaranteed by the Constitution in criminal cases. Just as labeling an action "civil" may allow the government to circumvent constitutional criminal procedure entirely, so labeling a fact an "affirmative defense" or a "sentencing factor" instead of an element of the offense may allow the government to escape constitutional criminal procedure selectively, bypassing the burden of proof, pleading, and jury requirements that would otherwise apply to an offense element. In its decision …

When Does An Unsafe Act Become A Crime?, Charles J. Dunlap Jr.

Faculty Scholarship

No abstract provided.

Joel Feinberg On Crime And Punishment: Exploring The Relationship Between The Moral Limits Of The Criminal Law And The Expressive Function Of Punishment, Bernard Harcourt

Faculty Scholarship

When I was originally approached to participate in this Symposium on the work and legacy of Joel Feinberg, I immediately began thinking about the influence of his essay The Expressive Function of Punishment on contemporary criminal law theory in the United States. That essay has contributed significantly to a growing body of scholarship associated with the resurgence of interest inexpressive theories of law. In the criminal law area, the expressivist movement traces directly and foremost to Feinberg's essay. As Carol Steiker observes, "Joel Feinberg can be credited with inaugurating the "expressivist" turn in punishment theory with his influential essay, The …

Sentencing Eddie, Gerard E. Lynch

Faculty Scholarship

The mandatory minimum sentences attached to federal narcotics violations have come in for plenty of criticism. The United States Sentencing Commission in 1991 submitted a lengthy report critical of the mandatory minimum provisions. A political protest organization, Families Against Mandatory Minimums, has been formed, and has gotten some media attention. Newspaper columnists,professional commentators, judges, and academics, have criticized the statutes. Amidst the controversy over President Clinton's last-minute pardons of various offenders, his pardons of a number of marginal defendants sentenced to lengthy terms under these statutes have drawn little or no objection. Even Chief Justice Rehnquist, a strong voice for …

An End To Insanity: Recasting The Role Of Mental Disability In Criminal Cases, Christopher Slobogin

Vanderbilt Law School Faculty Publications

This article argues that mental illness should no longer be the basis for a special defense of insanity. Instead, mental disorder should be considered in criminal cases only if relevant to other excuse doctrines, such as lack of mens rea, self-defense and duress, as those defenses have been defined under modern subjectively-oriented codes. With the advent of these subjectively defined doctrines (a development which, ironically, took place during the same period that insanity formulations expanded), the insanity defense has outlived its usefulness, normatively and practically. Modern official formulations of the defense are overbroad because, fairly construed, they exculpate the vast …

Editor's Observations: The 2001 Economic Crime Package: A Legislative History, Frank O. Bowman Iii

Faculty Publications

On April 6, 2001, the U.S. Sentencing Commission approved a group of amendments to guidelines governing the sentencing of economic crimes. These measures, collectively known to as the “economic crime package,” are the culmination of some six years of deliberations by both the Conaboy and Murphy Sentencing Commissions working together with interested outside groups such as the defense bar, the Justice Department, probation officers, and the Criminal Law Committee of the U.S. Judicial Conference, The package contains three basic components. First, the now-separate theft and fraud guidelines, Sections 2B1.1 and 2F1.1, will be consolidated into a single guideline. Second, the …

Avoiding The Appearance Of Judicial Bias: Allowing A Federal Criminal Defendant To Appeal The Denial Of A Recusal Motion Even After Entering An Unconditional Guilty Plea, Nancy B. Pridgen

Vanderbilt Law Review

One of the most fundamental social interests is that law shall be uniform and impartial. There must be nothing in its action that savors of prejudice or favor or even arbitrary whim or fitfulness. A suspect is charged with a federal crime, obtains legal counsel, and finds out who his judge will be. Because of a prominent rumor circulating in the community that the defendant once had an affair with the judge's wife, the defendant questions the judge's ability to be fair with him. He and his counsel file a timely motion for recusal under 28 U.S.C. § 455(a).' The …