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Articles 181 - 210 of 289
Full-Text Articles in Criminal Law
Surveillance Technology And The Loss Of Something A Lot Like Privacy: An Examination Of The Mosaic Theory And The Limits Of The Fourth Amendment, Courtney E. Walsh
Surveillance Technology And The Loss Of Something A Lot Like Privacy: An Examination Of The Mosaic Theory And The Limits Of The Fourth Amendment, Courtney E. Walsh
St. Thomas Law Review
No abstract provided.
Against Theories Of Punishment: The Thought Of Sir James Fitzjames Stephen, Marc O. Degirolami
Against Theories Of Punishment: The Thought Of Sir James Fitzjames Stephen, Marc O. Degirolami
Faculty Publications
This paper reflects critically on what is the near-universal contemporary method of conceptualizing the tasks of the scholar of criminal punishment. It does so by the unusual route of considering the thought of Sir James Fitzjames Stephen, a towering figure in English law and political theory, one of its foremost historians of criminal law, and a prominent public intellectual of the late Victorian period. Notwithstanding Stephen's stature, there has as yet been no sustained effort to understand his views of criminal punishment. This article attempts to remedy this deficit. But its aims are not exclusively historical. Indeed, understanding Stephen's ideas …
Attribution Of Criminal Liability A Critical Comparison Of The Us Doctrine Of Conspiracy And The Icty Doctrine Of Joint Criminal Enterprise From An American Perspective, Mark A. Summers
Faculty Scholarship
No abstract provided.
Engendering Injustice: Drug Laws, Drug Economies, And The Marginalization Of Women In New York State, Kate Mcgee
Engendering Injustice: Drug Laws, Drug Economies, And The Marginalization Of Women In New York State, Kate Mcgee
American Studies Senior Theses
On November 8, 1983, Elaine Bartlett left her apartment in Harlem, and headed to Grand Central Station. There, she met her boyfriend, Nate. They were headed to the Monte Mario Hotel in Albany. To any bystander, they may have looked like any other couple. But Elaine Bartlett knew different. That’s because she had a four-ounce bag of cocaine stuffed down the front of her pants. In 1983, Bartlett was a twenty-six year old woman with four children. A male friend, George Deets—although she knew him as Chris at the time—told her that if she delivered the drugs, she could earn …
The U.S. Supreme Court Gets It Right In Arizona V. Gant: Justifications For Rules Protect Constitutional Rights, Shenequa L. Grey
The U.S. Supreme Court Gets It Right In Arizona V. Gant: Justifications For Rules Protect Constitutional Rights, Shenequa L. Grey
St. Thomas Law Review
The purpose of this article is to demonstrate how the justifications or rationales for legal principles form the basis for compliance with the Fourth Amendment of the United States Constitution; and that therefore, failure to comply with those justifications leads to unconstitutional searches and seizures. Strict compliance with the underlying justifications prevents the courts from circumventing the Constitution by establishing a rule, then expanding it beyond its intended purpose. This article demonstrates and reiterates that compliance with the underlying justifications for establishing rules is essential to protecting individual constitutional rights. In addressing these issues, Part I of this article gives …
Hearsay After Crawford: A Practitioner's Guide, Marcia G. Cooke
Hearsay After Crawford: A Practitioner's Guide, Marcia G. Cooke
St. Thomas Law Review
The Sixth Amendment to the U.S. Constitution provides that "[i]n all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him." Although it may appear simple, concise and direct, the language of the Sixth Amendment has been the subject of much discussion.' The Confrontation Clause has been inevitably comingled with the hearsay rules, and determining when an out-of-court statement violates the rights of criminal defendants has been no easy task. For many years, it was uncontested, as established in Ohio v. Roberts, that to avoid violating a criminal defendant's Sixth Amendment rights, the …
Fear Itself: The Impact Of Allegations Of Gang Affiliation On Pre-Trial Detention, K. B. Howell
Fear Itself: The Impact Of Allegations Of Gang Affiliation On Pre-Trial Detention, K. B. Howell
St. Thomas Law Review
This article addresses the impact of alleged gang membership at the initial detention/bail determination for three reasons. First, the right to non-excessive bail is guaranteed by the Eighth Amendment. Second, although the impact of trial testimony about gangs presents a number of issues meriting exploration, the vast majority of criminal cases are either dismissed or resolved by plea. This is particularly so when charges are less serious. When misdemeanors or low-level felonies are charged, the incarceration of the defendant on excessive pre-trial bail will alter negotiation dynamics such that a defendant is likely to plead guilty in order to obtain …
Domestic Violence: The Use Of Pro-Arrest Policies And Mandatory Prosecutions, Amy L. Beck
Domestic Violence: The Use Of Pro-Arrest Policies And Mandatory Prosecutions, Amy L. Beck
Senior Honors Theses
Domestic violence is a crime that affects millions of American families. Traditionally,
domestic violence was recognized by the general population and the courts as being a
private issue that should be handled within the boundaries of the family. Law
enforcement and the judicial system played a minimal role and generally maintained a
hands off policy in relation to domestic violence cases. Adding to this mentality of
privacy, the Fourth Amendment to the Constitution prohibits entering a residence without
probable cause. The Minneapolis domestic violence experiment attempted to measure
which police response was most beneficial. In order to empower victims and …
An Institutionalization Effect: The Impact Of Mental Hospitalization And Imprisonment On Homicide In The United States, 1934-2001, Bernard E. Harcourt
An Institutionalization Effect: The Impact Of Mental Hospitalization And Imprisonment On Homicide In The United States, 1934-2001, Bernard E. Harcourt
Faculty Scholarship
Previous research suggests that mass incarceration in the United States may have contributed to lower rates of violent crime since the 1990s but, surprisingly, finds no evidence of an effect of imprisonment on violent crime prior to 1991. This raises what Steven Levitt has called “a real puzzle.” This study offers the solution to the puzzle: the error in all prior studies is that they focus exclusively on rates of imprisonment, rather than using a measure that combines institutionalization in both prisons and mental hospitals. Using state-level panel-data regressions over the 68-year period from 1934 to 2001 and controlling for …
Terrorism And The Law: Show Trials And Why The Show Must Go On, Ibpp Editor
Terrorism And The Law: Show Trials And Why The Show Must Go On, Ibpp Editor
International Bulletin of Political Psychology
The author discusses the nature and meaning of terrorism trials during the United States’ war on terror.
The Process Is The Problem: Lessons Learned From United States Drug Sentencing Reform, Erik S. Siebert
The Process Is The Problem: Lessons Learned From United States Drug Sentencing Reform, Erik S. Siebert
University of Richmond Law Review
No abstract provided.
The Excitement Of Interdictory Ideas: A Response To Professor Anders Walker, Marc O. Degirolami
The Excitement Of Interdictory Ideas: A Response To Professor Anders Walker, Marc O. Degirolami
Faculty Publications
The very first time that I taught criminal law, I would occasionally tell my six-year-old son, Thomas, about selected cases and situations that I had come across. Thomas enjoyed these discussions—more than I would have guessed: he was captivated by the horror of Dudley & Stephens, he was uncomfortably intrigued by shaming punishments, he was appropriately outraged at all manner of outcomes that seemed to him too harsh or too lenient. But most of all, he wanted to test his own burgeoning intuitions about right and wrong, good and evil, the permitted and the forbidden, against my "criminal law stories." …
Why The United States Supreme Court Got Some (But Not A Lot) Of The Sixth Amendment Right To Counsel Analysis Right, Paul Marcus
Why The United States Supreme Court Got Some (But Not A Lot) Of The Sixth Amendment Right To Counsel Analysis Right, Paul Marcus
St. Thomas Law Review
In the past forty-five years, the United States Supreme Court has firmly established the right to lawyers for poor people in criminal cases. The right, arising under the Sixth Amendment to the United States Constitution, extends beyond trials, and includes assistance in addition to lawyers for indigent defendants. The right to a lawyer is seen as central to our system of criminal justice. At the same time, the Justices' rulings here have been subject to sharp criticism in a host of areas relating to the stages of the proceedings to which the right applies, the failure to define indigency, and …
Foreword: Criminal Law Issue, Alfredo Garcia
Foreword: Criminal Law Issue, Alfredo Garcia
St. Thomas Law Review
It is my pleasure to write the foreword to this inaugural criminal law issue. The issue consists of four timely and incisive articles that underscore the importance of the procedural and fair trial guarantees embodied, respectively, in the Fourth and Sixth Amendments to the United States Constitution. A common theme underlies the message conveyed by the distinguished authors: the extent to which the interpretation of criminal procedural rights by both the Supreme Court and state appellate courts affect the everyday administration of justice in the United States.
Death Is Different: The Need For Jury Unanimity In Death Penalty Cases, Raoul G. Cantero, Robert M. Kline
Death Is Different: The Need For Jury Unanimity In Death Penalty Cases, Raoul G. Cantero, Robert M. Kline
St. Thomas Law Review
Florida requires jury unanimity in virtually all criminal trials. The only exception is death. In this sense, the maxim that "death is different" takes on ironic tones. In Florida, once the defendant is found guilty of a capital crime, the jury, after considering the aggravating and mitigating factors, recommends the sentence to the judge. The judge, however, ultimately imposes the sentence. Florida stands alone among thirty-five states in allowing a simple majority of the jury both to decide whether the prosecution proved an aggravating circumstance and to recommend a sentence of death. Both legal and policy grounds suggest that more …
Blakely, Apprendi, Booker, Begay, And Santos: Judicial Minimalism And The U.S. Supreme Court's Ill-Conceived Attempts At A Rational Jurisprudence, E.J. Yera
St. Thomas Law Review
The approach the Court has taken in the cases discussed herein has regrettably resulted in a waste of judicial, prosecutorial and defense resources at a time when the United States has more individuals in prison than any other industrialized nation in the world. More importantly, these decisions have left the law in a state of deliberate confusion and have harmed the individual defendants, many of whom are minorities whose rights are already fragile. The Court's unfinished decisions have also created a state of uncertainty that has been equally damaging to the victims of crime and to the integrity of the …
Big Bill Haywood's Revenge: The Original Intent Of The Exclusionary Rule, Milton Hirsch
Big Bill Haywood's Revenge: The Original Intent Of The Exclusionary Rule, Milton Hirsch
St. Thomas Law Review
We have been given fair warning. In two recent cases, Hudson v. Michigan and Herring v. United States, the Supreme Court made clear its desire to phase out the Fourth Amendment exclusionary rule - that century-old ornament of constitutional jurisprudence pursuant to which evidence obtained in violation of a defendant's right to be free from unreasonable search and seizure will not be received in court. Justice Scalia, writing for a bare majority in Hudson, argued that the utility, if any, of the exclusionary rule has run its course; and that the rule itself is better supplanted by alternative means of …
The Banality Of Excessive Defender Workload: Managing The Systemic Obstruction Of Justice, Bennett H. Brummer
The Banality Of Excessive Defender Workload: Managing The Systemic Obstruction Of Justice, Bennett H. Brummer
St. Thomas Law Review
This article focuses on the impact of public defender' ("PD") excessive caseload ("EC") and related indigent defense issues on the values of professionalism, stewardship, and patriotism. It can be regarded as a sequel to my previous article, "Independent, Professional Judgment: The Essence of Freedom," which dealt with the same fundamental values, but a wider range of topics. The article is intended as a reference, including recent material, in a somewhat different context from previous studies. In my experience, for the last 40 years, the normal functions of our state and local criminal justice systems ("CJS"), especially indigent defense and the …
A Call To Action: Concrete Proposals For Reducing Widespread Animal Suffering In The United States, Dana M. Campbell
A Call To Action: Concrete Proposals For Reducing Widespread Animal Suffering In The United States, Dana M. Campbell
Animal Law Review
No abstract provided.
Culpability In Creating The Choice Of Evils, Marc O. Degirolami
Culpability In Creating The Choice Of Evils, Marc O. Degirolami
Faculty Publications
Can an actor justify criminal conduct when he was criminally culpable in creating the conditions making it necessary? Virtually every American jurisdiction answers that he cannot and bars the necessity defense under those circumstances. Whereas many scholars have condemned that response, this Article takes the very different view that the exclusion of the defense for purposeful, knowing, and reckless criminal conduct that directly causes the conditions leading to the allegedly justified act represents a sound retributivist check on what is an otherwise cruder evaluation of whether conduct is socially valuable, worthy of praise, or, in a word, justified. Criminal "created …
Ignorance Is Effectively Bliss: Collateral Consequences, Silence, And Misinformation In The Guilty-Plea Process, Jenny Roberts
Ignorance Is Effectively Bliss: Collateral Consequences, Silence, And Misinformation In The Guilty-Plea Process, Jenny Roberts
Scholarly Articles in Law Reviews & Journals
In the 2009-2010 term, the U.S. Supreme Court will decide if it matters whether a criminal defense lawyer correctly counsels a client about the fact that the client faces deportation as a result of a guilty plea. Under prevailing constitutional norms in almost every jurisdiction, a lawyer does not have a duty to tell her client about many serious but "collateral" consequences of a guilty plea. Yet, in every jurisdiction that has considered the issue, that very same lawyer will run afoul of her duties if she affirmatively misrepresents a collateral consequence-every jurisdiction, that is,except Kentucky. The Supreme Court of …
Is There Really A Difference Between Justification And Excuse Or Did We Academics Make It Up?, Linda A. Malone
Is There Really A Difference Between Justification And Excuse Or Did We Academics Make It Up?, Linda A. Malone
Faculty Publications
No abstract provided.
Securities Fraud, Recidivism, And Deterrence, Jayne W. Barnard
Securities Fraud, Recidivism, And Deterrence, Jayne W. Barnard
Faculty Publications
Legal scholars have expended considerable energy on the study of high-level securities fraud violators-Ken Lay, Bernie Ebbers, Dennis Kozlowski, etc. There has been little attention, however, to the perpetrators of "retail" securities fraud-the con artists who sell bogus stock over the Internet, orchestrate elaborate pump-and-dump schemes, and create a never-ending array of purportedly "risk free" investment opportunities. Collectively, and in a cruel mockery of capitalism, these offenders extract hundreds of millions dollars from investors each year. In this article, Professor Barnard examines this group of offenders, focusing particularly on those who recidivate-often moving from state to state and scheme to …
Extending The Reach Of The State Into The Post-Sentence Period: Section 26 Of The Criminal Justice Act 2007, Mary Rogan
Extending The Reach Of The State Into The Post-Sentence Period: Section 26 Of The Criminal Justice Act 2007, Mary Rogan
Articles
The Criminal Justice Act 2007 heralded a plethora of changes to Irish criminal law and procedure. The law on sentencing was also affected by its provisions. The focus of this article is on section 26 of that Act which introduces a general power on a court to make an order while passing sentence which will take effect on the expiration of a sentence of imprisonment. Under section 26 a court can impose two such orders, the “monitoring” order and the “protection of persons” order. The author assesses the background to the introduction of these dispositions and the potential application and …
Pfo Law Reform, A Crucial First Step Towards Sentencing Sanity In Kentucky, Robert G. Lawson
Pfo Law Reform, A Crucial First Step Towards Sentencing Sanity In Kentucky, Robert G. Lawson
Law Faculty Scholarly Articles
The purpose of this article is to engage in some analysis and discussion of the part of this sentencing law that cries out loudest for reform (the state's persistent felony offender law), reform that in short order would begin to deflate the population that has our prisons and jails grossly overcrowded. In this analysis and discussion, there is some brief consideration of the justifications used to support repeat offender laws (Part I), a segment on the history and evolution of Kentucky's law (Part II), an examination of a selection of repeat offender laws from other states (Part III), a report …
The Jurisdictional Heritage Of The Grand Jury Clause, Roger A. Fairfax
The Jurisdictional Heritage Of The Grand Jury Clause, Roger A. Fairfax
Scholarly Articles in Law Reviews & Journals
No abstract provided.
The Past, Present, And Future Of Violent Crime Federalism, Daniel C. Richman
The Past, Present, And Future Of Violent Crime Federalism, Daniel C. Richman
Faculty Scholarship
The history of the federal involvement in violent crime frequently is told as one of entrepreneurial or opportunistic action by presidential administrations and Congress. The problem with this story, however, is that it treats state and local governments as objects of federal initiatives, not as independent agents. Appreciating that state and local governments courted and benefited from the federal interest is important for understanding the past two decades, but also for understanding the institutional strains created by the absolute priority the feds have given to counterterrorism since September 11, 2001. Intergovernmental relations are at a crossroads. For two decades, the …
Culture In Our Midst, Elaine M. Chiu
Culture In Our Midst, Elaine M. Chiu
Faculty Publications
Culture, like race, class, gender, sexual orientation and wealth is one of many ways in which the law is not neutral. Indeed, culture is a source of law. Yet, as traditional legal positivists have taught us, the law or legal doctrine can prove to be more powerful than culture, often outlasting it. The “mirror image” theory states that the laws of a particular locale reflect the culture of that locale. The law merely serves as enforcement of the common decency, propriety and morality of that culture. Not only is this understanding appealingly simple, it is often invoked by judges and …
Culture As Justification, Not Excuse, Elaine M. Chiu
Culture As Justification, Not Excuse, Elaine M. Chiu
Faculty Publications
The wide discussion of cultural defenses over the last twenty years has produced very little actual change in the criminal law. This Article urges a reorientation of our approach thus far to cultural defenses and aspires to move the languishing discussion to a more productive place. The new perspective it proposes is justification. The Article asks the criminal law to make doctrinal room for defendants to argue that their allegedly criminal acts are justified acts, and not excused acts, based on the values and norms of their minority cultures. Currently, the criminal law deals with such acts of minority defendants …
The New Religious Prisons And Their Retributivist Commitments, Marc O. Degirolami
The New Religious Prisons And Their Retributivist Commitments, Marc O. Degirolami
Faculty Publications
The rise of the religious, or "faith-based," prison at the turn of the twenty-first century bears witness to the remarkable resilience of religion in shaping the philosophy of punishment. In the last decade, prisons that incorporate religion in various ways have sprouted around the country and there are some indications, though preliminary, inconclusive, and hotly contested, that inmates who participate in religious instruction and “programming” recidivate at lower rates than those who do not. The early success of these programs (and, some say, the preferential treatment accorded to participants in them) has resulted in high demand and long waiting lists. …