Criminal Law Commons^™

Ultracrepidarianism In Forensic Science: The Hair Evidence Debacle, David H. Kaye

Faculty Scholarship

For over 130 years, scientific sleuths have been inspecting hairs under microscopes. Late in 2012, the FBI, the Innocence Project, and the National Association of Criminal Defense Lawyers joined forces to review thousands of microscopic hair comparisons performed by FBI examiners over several of those decades. The results have been astounding. Based on the first few hundred cases in which hairs were said to match, it appears that examiners “exceeded the limits of science” in over 90% of their reports or testimony. The disclosure of this statistic has led to charges that the FBI “faked an entire field of forensic …

The Irrelevance Of Prisoner Fault For Excessively Delayed Executions, Russell L. Christopher

Washington and Lee Law Review

Are decades-long delays between sentencing and execution immune from Eighth Amendment violation because they are self-inflicted by prisoners, or is such prisoner fault for delays simply irrelevant to whether a state-imposed punishment is cruel and unusual? Typically finding delay to be the state’s responsibility, Justices Breyer and Stevens argue that execution following upwards of forty years of death row incarceration is unconstitutional. Nearly every lower court disagrees, reasoning that prisoners have the choice of pursuing appellate and collateral review (with the delay that entails) or crafting the perfect remedy to any delay by submitting, as Justice Thomas has invited complaining …

The Prior Convictions Exception—A Comment, Matthew Engle

Washington and Lee Law Review

No abstract provided.

Big Data And Predictive Reasonable Suspicion, Andrew Ferguson

Scholarly Articles in Law Reviews & Journals

The Fourth Amendment requires “reasonable suspicion” to seize a suspect. As a general matter, the suspicion derives from information a police officer observes or knows. It is individualized to a particular person at a particular place. Most reasonable suspicion cases involve police confronting unknown suspects engaged in observable suspicious activities. Essentially, the reasonable suspicion doctrine is based on “small data” – discrete facts involving limited information and little knowledge about the suspect.But what if this small data is replaced by “big data”? What if police can “know” about the suspect through new networked information sources? Or, what if predictive analytics …

Sentencing Rules And Standards: How We Decide Criminal Punishment, Jacob Schuman

Faculty Scholarship

Over the course of the past 300 years, American sentencing policy has alternated between “determinate” and “indeterminate” systems of deciding punishment. Debates over sentence determinacy have so far focused on three main questions: Who should decide punishment? What makes punishment fair? And why should we punish wrongdoers at all?

In this Article, I ask a new, fourth, question: How should we decide punishment? I show that determinate sentencing uses rules to determine sentences, while indeterminate sentencing relies on standards. Applying this insight to federal sentencing practice, I demonstrate that district court judges “depart” or “vary” from the United States Sentencing …

Probability And Punishment: How To Improve Sentencing By Taking Account Of Probability, Jacob Schuman

Faculty Scholarship

The United States Sentencing Guidelines place little emphasis on probability. Instead, the Guidelines recommend a sentence in each case based only on whether certain facts about the offender’s crime exceed a “threshold” level of likelihood. Guidelines sentences therefore fail to reflect the precise odds of each defendant’s wrongdoing, which makes them both inefficient and unfair. This model of decision-making is particularly problematic in drug sentencing, where judges often impose lengthy sentences based on drug quantity calculations that carry a high risk of error. To address these problems, district courts should exercise their discretion and policymakers should implement reforms that incorporate …

The Faults In "Fair" Trials: An Evaluation Of Regulation 55 At The International Criminal Court, Margaux Dastugue

Vanderbilt Journal of Transnational Law

Despite its reputation as a "provision of an exceptional nature," Regulation 55 has become one of the most contested procedural devices employed by the judges at the International Criminal Court (ICC). Hailing from civil law tradition, Regulation 55 permits the ICC to modify the charges against an accused at any time--either during or after the trial--if the judiciary decides it cannot convict the accused on the original charges. This use of Regulation 55 in three of the ICC's seven trials has demonstrated that the ICC cannot effectively safeguard a defendant's fundamental trial rights: the right to be informed of charges, …

The Protection Of Human Rights In The Suppression Of Transnational Crime, Robert Currie

Articles, Book Chapters, & Popular Press

This chapter examines the troubled relationship between the various legal regimes under which states cooperate to suppress crime and the protection of human rights, specifically the procedural human rights of individuals targeted for investigation in transnational cases. It provides an analysis of what rights protections exist in the context of the suppression treaties themselves, and also whether and to what extent international human rights law imposes obligations on states when they engage in inter-state cooperation in criminal matters (eg extradition, mutual legal assistance). It concludes that despite the topic being an active one for some decades, relatively few hard human …

Expunging America's Rap Sheet In The Information Age, Jenny Roberts

Scholarly Articles in Law Reviews & Journals

"Getting a Second Chance After a Criminal Record.", "Want to Expunge Your Record?', "South Carolina Debating If It Should be Easier to Expunge a Brush with the Law." "Making a Fresh Start in Little Village." These are only some of the headlines of newspaper articles and television segments that came up in a Google Alert for "expungement" during one typical week in late 2014. The same week, in Cincinnati, Ohio, city council members backed expungement of low-level marijuana convictions. Expungement news that week was not limited to the United States. In Jamaica, the legislature passed a bill that allows expungement …

When Theory Met Practice: Distributional Analysis In Critical Criminal Law Theorizing, Aya Gruber

Publications

Progressive (critical race and feminist) theorizing on criminal law exists within an overarching American criminal law culture in which the U.S penal system has become a "peculiar institution" and a defining governance structure. Much of criminal law discourse is subject to a type of ideological capture in which it is natural to assume that criminalization is a valid, if not preferred, solution to social dysfunction. Accordingly, progressives’ primary concerns about harms to minority victims takes place in a political-legal context in which criminalization is the technique of addressing harm. In turn, progressive criminal law theorizing manifests some deep internal tensions. …

Using The Dna Testing Of Arrestees To Reevaluate Fourth Amendment Doctrine, Steven P. Grossman

All Faculty Scholarship

With the advent of DNA testing, numerous issues have arisen with regard to obtaining and using evidence developed from such testing. As courts have come to regard DNA testing as a reliable method for linking some people to crimes and for exonerating others, these issues are especially significant. The federal government and most states have enacted statutes that permit or direct the testing of those convicted of at least certain crimes. Courts have almost universally approved such testing, rejecting arguments that obtaining and using such evidence violates the Fourth Amendment.

More recently governments have enacted laws permitting or directing the …

Trafficked? Aids, Criminal Law And The Politics Of Measurement, Aziza Ahmed

Faculty Scholarship

Since early in the HIV epidemic, epidemiologists identified individuals who transact sex as a high-risk group for contracting HIV. Where the issue of transacting sex has been framed as sex work, harm-reduction advocates and scholars call for decriminalization as a primary legal solution to address HIV. Where the issue is defined as trafficking, advocates known as abolitionists argue instead for the criminalization of the purchase of sex.

Global health governance institutions are porous to these competing ideas and ideologies. This article first historicizes the contestation between harm-reduction and abolition in global governance on health. The paper then turns to a …

Punishment And Blame For Culpable Indifference, Kenneth Simons

Faculty Scholarship

In criminal law, the mental state of the defendant is a crucial determinant of the grade of crime that the defendant has committed and of whether the conduct is criminal at all. Under the widely accepted modern hierarchy of mental states, an actor is most culpable for causing harm purposely, and progressively less culpable for doing so knowingly, recklessly, or negligently. Notably, this hierarchy emphasizes cognitive rather than conative mental states. But this emphasis, I argue, is often unjustified. When we punish and blame for wrongful acts, we should look beyond the cognitive dimensions of the actor’s culpability, and should …

Changing Punishments For Property Offenses, To Change The Lives Of Women In Need, Amber Baylor

Faculty Scholarship

In 2014, many states revisited disproportionately high sentencing schemes for low-level property offenses. Voters in states across the country rallied in favor of reductions in penalties for low-level, nonviolent property offenses, such as theft, check fraud, and larceny. Bipartisan efforts to ease the financial burden of incarceration have lead to criminal justice reforms in states like California, Oregon, and Mississippi. Advocates for women in the criminal justice system have embarked on campaigns to frame reforms as not just a cost-cutting measure, but also as a moral imperative.

For many women, primarily women with little money, relatively low-value property offense convictions …

Leniency In Chinese Criminal Law? Everyday Justice In Henan, Benjamin L. Liebman

Faculty Scholarship

This Article examines one year of publicly available criminal judgments from a basic-level rural county court and an intermediate court in Henan Province in order to better understand trends in routine criminal adjudication in China. I present an account of ordinary criminal justice in China that is both familiar and striking: a system that treats serious crimes, in particular those affecting State interests, harshly, while at the same time acting leniently in routine cases. Most significantly, examination of more than five hundred court decisions shows the vital role that settlement plays in criminal cases in China today. Defendants who agree …

Surprise Symphony: The Supreme Court’S Major Criminal Law Rulings Of The 2002 Term, William E. Hellerstein

Touro Law Review

No abstract provided.

Appellate Division, Fourth Department, People V. Cortes, Jennifer Feldman

Touro Law Review

No abstract provided.

A Year To Remember: The Supreme Court's Fourth, Fifth, And Sixth Amendment Jurisprudence For The 2003 Term, William E. Hellerstein

Touro Law Review

No abstract provided.

The Linchpin Of Identification Evidence: The Unreliability Of Eyewitnesses And The Need For Reform In West Virginia, Jared T. Dotson

West Virginia Law Review

No abstract provided.

Shadow Trial: Prosecutors In Ferguson Violated Our Right To An Open Criminal Justice System, Sonja R. West, Dahlia Lithwick

Popular Media

St. Louis County prosecutor Robert McCulloch’s decision to “open up” the grand jury proceedings by including massive amounts of testimony and evidence has been decried as “highly unusual,” “deeply unfair,” and evidence that police officer Darren Wilson received “special treatment.” McCulloch’s move to include a good deal of exculpatory evidence and testimony led to a three-month, closed-door proceeding that included 70 hours of testimony, including 60 witnesses and three medical examiners. The breadth of the evidence presented to the grand jury has led many to declare that it turned the entire proceeding into something that walks and quacks an awful …

Excuses, Justifications, And Duress At The International Criminal Tribunals, Noam Wiener

Pace International Law Review

This article examines the application of the defense of duress by international criminal tribunals through analyzing opposing theoretical approaches to justifications and excuses. The purpose of this examination is twofold. First, the article offers a framework for duress’s application by examining scholarly approaches to duress and by analyzing the application of the defense by international tribunals. This analysis includes the tribunals constituted following the Second World War and International Criminal Tribunal for the Former Yugoslavia (ICTY). Second, the article provides insight into the underlying rationales that guide judges at the international tribunals in the last decade through the judges’ application …

United States V. Erwin And The Folly Of Intertwined Cooperation And Plea Agreements, Kevin Bennardo

Washington and Lee Law Review Online

Cooperation agreements and plea agreements are separate and independent promises by criminal defendants to: (1) assist the Government in the prosecution of another person and (2) plead guilty. A defendant’s breach of one should not affect the Government’s obligation to perform under the other. All too often, however, these agreements are inappropriately intertwined so that a minor breach of the plea agreement relieves the Government of its obligation to move for a downward sentencing departure in recognition of the defendant’s substantial assistance. This intertwining undermines sentencing policy as set forth in the federal sentencing statute. Thus, a district court should …

Time To Unpack The Juggernaut?: Reflections On The Canadian Federal Parliamentary Debates On "Cyberbullying", Jane Bailey

Dalhousie Law Journal

Cyberbullying has come to the fore in federal parliamentary debate largely in the last two years in tandem with high profile media reporting of several teen suicides. The government responded with the Protecting Canadians from Online Crime Act that incorporates, among other things, criminal law responses to nonconsensual distribution of intimate images and gender-based hate propagation, but only at the expense of expanded state surveillance. However, a review of the parliamentary debates reveals a richer array of approaches in which the efficacy of criminal law responses was contested. This article reports on the diversity of viewpoints that emerged within the …

Attorney Competence In An Age Of Plea Bargaining And Econometrics, Jeffrey Bellin

Vanderbilt Law School Faculty Publications

The first part of this Essay explores the authors' findings, which do not fit as neatly into mainstream thinking about indigent defense representation as the authors suggest. The study's dramatic findings appear to stem from a counterintuitive form of professional competence: aptitude at convincing one's client to plead guilty.6 As discussed below, skill at obtaining a client's waiver of his constitutional right to a jury trial is not the traditional model of effective representation. If modem defense attorney competence primarily manifests in this manner, the implications for indigent defense and criminal justice generally are more revolutionary than the study's authors …

The Shame Game: Montana's Right To Privacy For Level 1 Sex Offenders, Johnna Preble

Montana Law Review

The Shame Game: Montana's Right To Privacy For Level 1 Sex Offenders

Severing Ties: The Case For Indefinite Orders Of Protection For Survivors Of Domestic Violence, Kelly M. Driscoll

Montana Law Review

Severing Ties: The Case For Indefinite Orders Of Protection For Survivors Of Domestic Violence

Teaching The Wire: Integrating Capstone Policy Content Into The Criminal Law Curriculum, Roger Fairfax

Scholarly Articles in Law Reviews & Journals

When I first proposed teaching a seminar on The Wire at the George Washington University Law School in 2010, I encountered very disparate reactions. Those unfamiliar with the show generally wondered whether the law school curriculum was any place for a course with the name of a popular television drama in the title. Those who had heard glowing things about, but had not seen, The Wire typically professed their intention to watch the show but shared the skepticism of the former group on its suitability as the focus of a law school course. Finally, those who had viewed the series …

Systemic Barriers To Effective Assistance Of Counsel In Plea Bargaining, Rodney J. Uphoff, Peter A. Joy

Faculty Publications

In a trio of recent cases, Padilla v. Kentucky, Missouri v. Frye, and Lafler v. Cooper, the U.S. Supreme Court has focused its attention on defense counsel's pivotal role during the plea bargaining process . At the same time that the Court has signaled its willingness to consider ineffective assistance of counsel claims at the plea stage, prosecutors are increasingly requiring defendants to sign waivers that include waiving all constitutional and procedural errors, even unknown ineffective assistance of counsel claims such as those that proved successful in Padilla and Frye. Had Jose Padilla and Galin Frye been forced to sign …

"Stand Your Ground" In Context: Race, Gender, And Politics, Donna Coker

University of Miami Law Review

No abstract provided.

Abstract Risk And The Politics Of The Criminal Law, Brenner M. Fissell

Faculty Publications

Much of the criminal law contains what theorists call “abstract endangerment” statutes — crimes that punish not actual, but hypothetical, creation of risk. Consider the case of underage alcohol possession: age does not necessarily imply immaturity, and possession does not necessarily lead to consumption. The crime is therefore doubly “abstract”: many violations will create no risk of harm at all but the conduct is nevertheless prohibited. Theoretical defenses of these overinclusive laws proceed mainly by emphasizing the deficiencies of individuals in assessing their own cases of risk. What these defenses implicitly assume, though, is that the entity the individual must …