Criminal Law Commons^™

A Political Interpretation Of Vagueness Doctrine, Brenner M. Fissell, Guyora Binder

Faculty Publications

The “void-for-vagueness” doctrine requires the specific definition of criminal offenses. In this Article, though, we claim it does more: it largely restricts criminalization decisions to legislatures, which are unlikely to criminalize conduct they see as both harmless and widespread. Thus, rather than constitutionalizing the harm principle and thereby assuming a judicial obligation to define harm, the Supreme Court has used the vagueness doctrine to constrain majorities to make their own assessments of harmfulness. While American law has no explicit requirements that criminal liability be created by legislation or conditioned on harm, the vagueness doctrine achieves those ends indirectly

Reestablishing A Knowledge Mens Rea Requirement For Armed Career Criminal Act "Violent Felonies" Post-Voisine, Jeffrey A. Turner

Vanderbilt Law Review

Until 2016, federal courts unanimously concluded that predicate offenses for the Armed Career Criminal Act ('ACCA") required a knowledge mens rea. Therefore, any state law crimes that could be com- mitted with a reckless mens rea were not "violent felonies" and could not serve as ACCA predicates. In 2016, however, the U.S. Supreme Court's opinion in Voisine v. United States disrupted that lower court consensus. The Court stated that a reckless mens rea was sufficient to violate 18 U.S.C. § 922(g)(9), which bars individuals convicted of misdemeanor domestic violence offenses from possessing firearms.

The ACCA's language is similar to § …

Misdemeanor Appeals, Nancy J. King, Michael Heise

Vanderbilt Law School Faculty Publications

We provide the first estimate of the rate of appellate review for misdemeanors, concluding that appellate courts review no more than eight in ten thousand misdemeanor convictions and disturb only one conviction or sentence out of every ten thousand misdemeanor judgments. This level of oversight is much lower than that for felony cases, for reasons we explain. To develop law and regulate error in misdemeanor cases, particularly in prosecutions for the lowest-level offenses, courts may need to provide mechanisms for judicial scrutiny outside the direct appeal process.

Additional findings include new information about the rate of felony trial court review …

Unreasonable Revelations: God Told Me To Kill, Linda Ross Meyer

Pace Law Review

This Article focuses on one extreme example of the law’s response to unreasonable revelations that is starkly presented in a series of unsettling murders: those involving criminal defendants who claim they committed their crime because God told them to do it—known as “deific decree” cases. This example of the conflict between revelation and reason tests the limits of law’s ability to understand and countenance revelation when the stakes are highest. The deific decree cases also present the hardest epistemological problems, because the defendant claims that the experience of God’s command is self-authenticating—a position fundamentally at odds with both scientific and …

Due Process Supreme Court Appellate Division

Touro Law Review

No abstract provided.

Due Process People V. Scott (Decided June 5, 1996)

Touro Law Review

No abstract provided.

Due Process Court Of Appeals

Touro Law Review

No abstract provided.

Supreme Court Queens County

Touro Law Review

No abstract provided.

Double Jeopardy

Touro Law Review

No abstract provided.

Canada's Assisted Human Reproduction Act: Pragmatic Reforms In Support Of Research, Tania M. Bubela, Erika Kleiderman, Zubin Master, Ubaka Ogbogu, Vardit Ravitsky, Amy Zarzeczny, Bartha Maria Knoppers

Office of the Provost

Canada's Assisted Human Reproduction Act is long overdue for Parliamentary review. We argue that the current regulation of research using human reproductive materials is not proportionate, not responsive to the uncertain threats posed to human and environmental health and safety, and is not considerate of diverse values in a democratic society. We propose tailored regulatory carve-outs for in vitro research for currently prohibited activities, such as gene editing, and for the exercise of Ministerial Discretion for access by Canadians to experimental in vivo interventions that are currently prohibited, such as mitochondrial replacement therapy. Our recommendations are bounded by constitutional constraints …

It's Complicated: The Challenge Of Prosecuting Tncs For Criminal Activity Under International Law, Jena Martin

Faculty & Staff Scholarship

This essay aims to tackle an increasingly thorny and relevant issue: what do you do if a Transnational Corporation (TNC) commits a crime? The question raises a number of challenges, both philosophically and practically. First, what does it mean to prosecute an organization? Although there are some limited examples (the United States’ prosecution of accounting firm Arthur Andersen being among the most note-worthy), we have relatively little precedence regarding what this would entail; how exactly do you put a corporation on trial? Second, practically speaking, where do you hold the trial? This challenge is magnified by the fact that, by …

Skinning The Cat: How Mandatory Psychiatric Evaluations For Animal Cruelty Offenders Can Prevent Future Violence, Ashley Kunz

The Scholar: St. Mary's Law Review on Race and Social Justice

In 2017, the Texas legislature amended Texas Penal Code § 42.092, which governs acts of cruelty against non-livestock animals. The statute in its current form makes torturing, killing, or seriously injuring a non-livestock animal a third degree felony, while less serious offenses carry either a state jail felony or a Class A misdemeanor charge.

While a step in the right direction, Texas law is not comprehensive in that it fails to address a significant aspect of animal cruelty offenses: mental illness. For over fifteen years, Texas Family Code § 54.0407 has required psychiatric counseling for juveniles convicted of cruelty to …

A Statistical Analysis Of Predictors Associated With The Dramatic Decline In Death Sentences In The United States In The Last Two Decades, Talia R. Harmon, David Mccord

Journal of Criminal Justice and Law

The annual number of new death sentences in the United States has fallen by more than 75% in the last two decades. The current study examines 1,665 death-eligible cases from 1994, 2004, and 2014 to draw empirically based conclusions that can shed light on some significant predictors associated with this dramatic decline. The results of logistic regression models suggest that the following were consistently significant predictors of case outcomes throughout the country over time: multiple perpetrators, age of perpetrators between 18 and 20 years, number of mitigators, cases with high and low aggravation, and five formerly high-volume counties. By contrast, …

Cell Phones Are Orwell's Telescreen: The Need For Fourth Amendment Protection In Real-Time Cell Phone Location Information, Matthew Devoy Jones

Cleveland State Law Review

Courts are divided as to whether law enforcement can collect cell phone location information in real-time without a warrant under the Fourth Amendment. This Article argues that Carpenter v. United States requires a warrant under the Fourth Amendment prior to law enforcement’s collection of real-time cell phone location information. Courts that have required a warrant prior to the government’s collection of real-time cell phone location information have considered the length of surveillance. This should not be a factor. The growing prevalence and usage of cell phones and cell phone technology, the original intent of the Fourth Amendment, and United States …

Sentencing Persons Convicted Of Minor Offences In Ghana: Reducing Judicial Over-Reliance On Imprisonment, Nenyo Kwasitsu

LLM Theses

This thesis argues that there is overuse of imprisonment for minor offenders in Ghana. These are offenders whose punishments go up to 3 years of jail time, essentially offending mainly for reasons of material poverty. Statutory sentencing provisions have essentially limited judges to impose jail terms. It is argued that one way to decongest Ghana’s prisons is to consider the institutionalization of a regime of community service orders and probation, the administration of which would equip the offenders with income-earning skills while they also reform. Drawing on Kenya, a country that has achieved reasonable success in this reform effort, this …

Class V. United States: An Imperfect Application Of The Menna-Blackledge Doctrine To Post-Guilty Plea Constitutional Claims, Nikolaus Albright

Maryland Law Review

No abstract provided.

Envisioning Abolition Democracy, Allegra M. Mcleod

Georgetown Law Faculty Publications and Other Works

For decades, police in Chicago chained people in their custody to the wall in dark, windowless rooms and subjected their captives to beatings, electric shocks, anal rape, and racial abuse. In July 2016, members of the #LetUsBreathe Collective, created in the aftermath of numerous police killings in Chicago and elsewhere, occupied vacant lots adjacent to the Chicago Police Department’s Homan Square facility — one of the locations where such abuse occurred. The Collective sought justice, not through recourse to the criminal courts or civil litigation, but instead by reconceptualizing justice in connection with efforts to end reliance on imprisonment and …

Down To The Last Strike: The Effect Of The Jury Lottery On Criminal Convictions, Scott Kostyshak, Neel U. Sukhatme

Georgetown Law Faculty Publications and Other Works

How much does luck matter to a criminal defendant in a jury trial? We use rich data on jury selection to causally estimate how parties who are randomly assigned a less favorable jury (as proxied by whether their attorneys exhaust their peremptory strikes) fare at trial. Our novel identification strategy uniquely captures variation in juror predisposition using data unobserved by the econometrician but observed by attorneys. Criminal defendants who lose the “jury lottery” are more likely to be convicted than similarly-situated counterparts, with a significant increase (18-20 percentage points) for Black defendants. Our results are robust to alternate specifications and …

Women's Rights, Human Rights And The Criminal Law Or, Feminist Debates And Responses To [De]Criminalization And Sexual And Reproductive Health, Aziza Ahmed

Faculty Scholarship

My comments today seek to highlight how social and economic rights advocates, particularly those concerned with the right to health, engage with ongoing debates about the role of criminal law in human rights. In particular, I emphasize how many “right to health” campaigns fight for the decriminalization of laws that result in the arrest of marginalized communities or health workers. This trend within right to health advocacy complicates what has been called the anti-impunity turn in human rights. In other words, although many scholars have correctly highlighted the rise of a carceral agenda in human rights, there is also ongoing, …

Multiple Foster Care Placements Should Be Considered A Mitigating Factor In Criminal Proceedings, Daniel Pollack, Khaya Novick Eisenberg Dr., Amanda Dolce Esq.

Ohio Northern University Law Review

No abstract provided.

Ohio's New Sentencing Guidelines: A "Middleground" Approach To Crack Sentencing, Dan Haude

Akron Law Review

No abstract provided.

The Persistence Of Fatal Police Taserings In 2018, Donald E. Wilkes Jr.

Popular Media

Fatal police taserings have been a persistent phenomenon in the United States for nearly two decades. Steadily, relentlessly, year after year, month after month, our police kill citizens with tasers. This article reviews the history of fatal police taserings and those that occurred in 2018.

Honoring Innocent Until Proven Guilty: Switching The Default Rule From Pretrial Detention To Pretrial Release In Texas's Bail System, Stephen Rispoli

Texas A&M Law Review

Texas’s current prison population consists of far more pretrial detainees than convicted criminals. Despite United States and Texas constitutional protections, the default rule in many jurisdictions, including Texas, detains misdemeanor and non-violent felony defendants unless they can post a monetary bond or get a surety to post the bond for them (“bail bond”) to obtain their release. Most pretrial detainees remain detained due not to their alleged dangerousness, but rather because they simply cannot afford to post bail (or get someone to post it for them). As a result, many pretrial detainees find themselves choosing between hamstringing their financial future …

Graffiti, Speech, And Crime, Jenny E. Carroll

Faculty Scholarship

Graffiti resides at the uncomfortable intersection of criminal law and free speech rhetoric. It is not the shout of revolution to the gathered, protesting masses, or the political pamphlet flung from a 1920s window. Graffiti is not the obscene-rendered-political-jacketed protest of war, or a flag set aflame in the name of reclaiming patriotism. It is an illicit scrawl. It is damage and defiance rolled into one from the moment of its creation. Graffiti is a crime.

Unlike more celebrated examples of free speech, graffiti earns no safe harbor from the First Amendment. When asked to choose between the tag that …

Ethics In Criminal Justice Ccg 333, Karen Morse

Library Impact Statements

No abstract provided.

Human Dignity: The Clandestine Factor In Prosecutorial Discretion, Tamara F. Lawson

Intercultural Human Rights Law Review

Justice and human dignity have an organic and symbiotic relationship. The American Bar Association's Functions and Duties of the Prosecutor Standard 3-1.2(a) outlines that "[t]he prosecutor is an administrator of justice . . . [and] should exercise sound discretion and independent judgement in the performance of the prosecution function." The ABA standards further prohibit improper bias2 and proscribe a duty to report and respond to prosecutorial misconduct.3 ABA Standard 3-1.2(b) states: "The primary duty of the prosecutor is to seek justice within the bounds of the law, not merely to convict." 4 Although rarely openly discussed, I ask now, is …

Gamble, Dual Sovereignty, And Due Process, Anthony J. Colangelo

Faculty Journal Articles and Book Chapters

The Constitution’s Double Jeopardy Clause is an analytically gnarly beast. What seems like a fairly straightforward prohibition on multiple prosecutions for the same crime turns out to be a bramble bush of doctrinal twists and snarls. At the center is the so-called “dual sovereignty” doctrine. This principle holds that separate sovereigns may prosecute for what looks like the same “offence”—to use the Constitution’s language—because they have separate laws, and those laws prohibit separate offenses, and thus the Double Jeopardy Clause’s bar on multiple prosecutions for the same offense simply does not come into play. As a doctrine that relates to …

Mens Rea In Comparative Perspective

Marquette Law Review

This Essay compares and contrasts the American and civilian approaches to mens rea. The comparative analysis generates two important insights. First, it is preferable to have multiple forms of culpability than to have only two. Common law bipartite distinctions such as general and specific intent fail to fully make sense of our moral intuitions. The same goes for the civilian distinction between dolus (intent) and culpa (negligence). Second, attitudinal mental states should matter for criminalization and grading decisions. Nevertheless, adding attitudinal mental states to our already complicated mens rea framework may end up confusing juries instead of helping them. As …

Constitutionally Incapable: Parole Boards As Sentencing Courts, Mae C. Quinn

Journal Articles

Courtroom sentencing, as part of the judicial process, is a long-standing norm in the justice system of the United States. But this basic criminal law precept is currently under quiet attack. This is because some states are now allowing parole boards to step in to decide criminal penalties without first affording defendants lawful judicial branch sentencing proceedings and sentences. These outside-of-court punishment decisions are occurring in the cases of youthful offenders entitled to sentencing relief under Miller v. Alabama, which outlawed automatic life-without-parole sentences for children. Thus, some Miller-impacted defendants are being sentenced by paroleboards as executive branch agents, rather …

Prosecuting In The Shadow Of The Jury, Anna Offit

Faculty Journal Articles and Book Chapters

This article offers an unprecedented empirical window into prosecutorial discretion drawing on long-term participatory research between 2013 and 2017. The central finding is that jurors play a vital role in federal prosecutors’ decision-making, professional identities, and formulations of justice. This is because even the remote possibility of lay scrutiny creates an opening for prosecutors to make common sense assessments of (1) the evidence in their cases, (2) the character of witnesses, defendants and victims, and (3) their own moral and professional character as public servants. By facilitating explicit consideration of the fairness of their cases from a public vantage point, …