Criminal Law Commons^™

Criminalization In Shades Of Color: Prosecuting Pregnant Drugaddicted Women, Carla-Michelle Adams

Cardozo Journal of Equal Rights & Social Justice

The article argues that criminalizing pregnant women for drug use is both unconstitutional and ineffective. It contends that such prosecutions infringe upon fundamental rights, disproportionately affect minority women, and fail to address the root causes of addiction. The author advocates for a public health approach, emphasizing treatment over punishment to protect both the mother and the fetus.

The Degrading Character Rule In American Criminal Trials, Paul S. Milich

Georgia Law Review

The rule prohibiting evidence of the accused's bad
character is steadily degrading as courts and legislatures
expand existing exceptions and add new ones. In Georgia,

we saw the rule almost disappear as trial courts blithely
admitted a defendant's past crimes to prove his or her
"bent of mind" to commit the crime charged. This Article
examines why the character rule is losing ground.
The thesis is that a rule requiring as much careful
balancing as the character rule needs a clear, strong
justification to hold its own when faced with competing
claims to admit the evidence in the search for …

Taking A Toll On The Equities: Governing The Effect Of The Plra's Exhaustion Requirement On State Statutes Of Limitations, Keri E. Mccrary

Georgia Law Review

If prisoners are required by federal law to exhaust
institutional remedies before they may file suit in federal
court, should a prisoner with a legitimate claim suffer
dismissal by the federal court if the statute of limitations
lapses during the time the prisoner spends exhausting
administrative remedies? The Prisoner Litigation Reform
Act (PLRA) of 1996 offers no guidance. Federal courts
may choose to apply equitable tolling to a prisoner's claim
should this predicament arise, saving it from dismissal
based on tardiness, but nothing requires the court to do so.
The PLRA's enigmatic exhaustion requirement has
engendered much litigation, and the …

Prosecuting Those Bearing 'Greatest Responsibility': The Lessons Of The Special Court For Sierra Leone, Charles Chernor Jalloh

Faculty Publications

This Article examines the controversial article 1(1) of the Statute of the Special Court for Sierra Leone (SCSL) giving that tribunal the competence “to prosecute those who bear the greatest responsibility” for serious international and domestic crimes committed during the latter part of the notoriously brutal Sierra Leonean conflict. The debate that arose during the SCSL trials was whether this bare statement constituted a jurisdictional requirement that the prosecution must prove beyond a reasonable doubt or merely a type of guideline for the exercise of prosecutorial discretion. The judges of the court split on the issue. This paper is the …

Does Living By The Sword Mean Dying By The Sword?, Charles Chernor Jalloh

Faculty Publications

What do serial killer Ted Bundy, 9/11 terrorist Zacarias Moussaoui and alleged “Butcher of the Balkans” Slobodan Milošević have in common? Besides being accused of perpetrating some of the worst crimes known to law, they each insisted on representing themselves in court without the assistance of a lawyer. Not surprisingly, Bundy and Moussaoui were convicted. And although Milošević died just before trial judgment was rendered, it is widely speculated that he too would have been convicted by the International Criminal Tribunal for the former Yugoslavia. This article examines the right to self-representation in international criminal law. Using a comparative law …

The Returns To Criminal Capital, Thomas Loughran, Holly Nguyen, Alex R. Piquero, Jeffrey Fagan

Faculty Scholarship

Human capital theory (Becker 1962; Mincer 1958; Schultz 1960; 1961) posits that individuals can increase their labor market returns through investments in education and training. This concept has been studied extensively across several disciplines. An analog concept of criminal capital, while the focus of speculation and limited empirical study, remains considerably less developed theoretically and methodologically. This paper offers a formal theoretical model of criminal capital indicators and tests for greater illegal wage returns using a sample of serious adolescent offenders, many of whom participate in illegal income-generating activities. Our results reveal that, consistent with human capital theory, there are …

Miller V. Alabama And The (Past And) Future Of Juvenile Crime Regulation, Elizabeth S. Scott

Faculty Scholarship

This essay was the keynote address for a symposium on Miller v Alabama, the 2012 Supreme Court opinion holding unconstitutional under the Eighth Amendment a statute imposing a mandatory sentence of life without parole for juveniles convicted of homicide. The essay argues that Miller embodies a way of thinking about juvenile crime that has taken hold in the early 21st century – an approach that emphasizes the importance for legal policy of developmental differences between juveniles and adults. This emerging trend contrasts sharply with the regulatory approach of the 1990s when moral panics over juvenile crime fueled punitive law reforms …

(Crime) School Is In Session: Mapping Illegal Earnings To Institutional Placement, Holly Nguyen, Thomas Loughran, Ray Paternoster, Jeffrey Fagan

Faculty Scholarship

A growing consensus suggests that incarcerating offenders tends to have either null or criminogenic effects at both the individual and neighborhood levels. There is also further evidence that there are unintended consequences of incarcerating juvenile offenders such as delayed psychosocial development and school dropout. The current study considers a much less examined hypothesis — that correctional environments can facilitate the accumulation of “criminal capital” and might actually encourage offending by serving as a school of crime. Using unique panel data from a sample of serious juvenile offenders, we are able to identify the criminal capital effect by considering illegal earnings …

Desistance And Legitimacy: The Impact Of Offender Notification Meetings On Recidivism Among High Risk Offenders, Andrew V. Papachristos, Danielle M. Wallace, Tracey L. Meares, Jeffrey Fagan

Faculty Scholarship

Objective: Legitimacy-based approaches to crime prevention operate under the assumption that individuals — including violent offenders — are more likely to comply with the law when they believe that the law and its agents are legitimate and act in ways that seem inherently “fair” and “just.” While mounting evidence finds an association between such legitimacy-based programs and reductions in aggregate levels of crime and violence, no study has investigated whether such programs influence individual offending. This study evaluates the effectiveness of one such program — Project Safe Neighborhoods’ (PSN) Offender Notification Meetings — at reducing individual recidivism among a population …

Due Process In Islamic Criminal Law, Sadiq Reza

Faculty Scholarship

Rules and principles of due process in criminal law--how to, and how not to, investigate crime and criminal suspects, prosecute the accused, adjudicate criminal cases, and punish the convicted--appear in the traditional sources of Islamic law: the Quran, the Sunna, and classical jurisprudence. But few of these rules and principles are followed in the modern-day practice of Islamic criminal law. Rather, states that claim to practice Islamic criminal law today mostly follow laws and practices of criminal procedure that were adopted from European nations in the twentieth century, without reference to the constraints and protections of Islamic law itself. To …

Introductory Note To Prosecutor V. Germain Katanga: Judgment On The Appeal Against The Decision Of Trial Chamber Ii Of 21 November 2012 (Int'l Crim. Ct.), Steven Arrigg Koh

Faculty Scholarship

The Appeals Chamber of the International Criminal Court (ICC) in the case of Prosecutor v. Germain Katanga held that a Trial Chamber, during the deliberations stage of trial proceedings, may, pursuant to Regulation 55 of the Regulations of the Court (Regulation 55), give notice of a possible modification of the legal characterization of the facts in its final Judgment, so long as the trial remains fair. This Introductory Note will provide background on the Katanga case and Regulation 55, summarize the Appeals Chamber's Judgment, and discuss the implications of this ruling.

Prescriptions For Ethical Blindness: Improving Advocacy For Indigent Defendants In Criminal Cases, Tigran W. Eldred

Faculty Scholarship

The reasons criminal lawyers so often fail to provide adequate legal representation to indigent defendants are well-­known: severe underfunding, excessive workloads, and other disincentives for competent representation work together to encourage quick disposition of cases, with little regard for the quality of legal services that are provided. Yet, largely overlooked in this equation is whether defense lawyers who provide subpar representation are aware of their own shortcomings. To answer this question, this Article focuses on the psychology of ethical decision making. Relying on research that reveals the subtle ways that self-­interest can cause people to overlook unethical behavior, it argues …

Motivation Matters: Guideline 10.13 And Other Mechanisms For Preventing Lawyers From Surrendering To Self-Interest In Responding To Allegations Of Ineffective Assistance In Death Penalty Cases, Tigran W. Eldred

Faculty Scholarship

Defense lawyers whose clients are sentenced to death are virtually guaranteed to be accused of ineffective assistance of counsel. The question is how they will respond. On one hand, lawyers alleged to be ineffective are obligated under Guideline 10.13 of the American Bar Association’s Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases to continue to safeguard the interests of their former clients, a duty that includes full cooperation in appropriate legal strategies chosen to pursue the ineffectiveness claim. On the other hand, lawyers who are accused of ineffectiveness often react defensively to the allegation, reflexively …

"Children Are Different": Constitutional Values And Justice Policy, Elizabeth S. Scott

Faculty Scholarship

This essay explores the importance for Eighth Amendment jurisprudence and for juvenile crime regulation of Miller v. Alabama (2012) and two earlier Supreme Court opinions rejecting harsh sentences for juveniles. It argues that the Court has broken new ground in defining juveniles as a category of offenders who are subject to special Eighth Amendment protections. In Miller and in Graham v. Florida (2010) particularly, the Court has applied to juveniles' non-capital sentences the rigorous proportionality review that, for adults, has been reserved for death sentences. The essay then turns to the implications of the opinions for juvenile crime policy, arguing …

Plea Bargaining, Sentence Modifications, And The Real World, Julian A. Cook

Scholarly Works

This article examines the 2011 Supreme Court decision in United States v. Freeman. At issue was whether defendants, such as Freeman, who enter a guilty plea pursuant to a binding plea agreement, are entitled to seek a modification of their sentence when the guideline range applicable to their offense has subsequently been lowered by the United States Sentencing Commission. By a five-to-four vote, the Court found that Freeman was eligible to seek a sentence reduction. However, as the article explains, the concurring and controlling opinion of Justice Sotomayor may ultimately prove to be problematic for criminal defendants generally and for …

A Snitch In Time: An Historical Sketch Of Black Informing During Slavery, Andrea L. Dennis

Scholarly Works

This article sketches the socio-legal creation, use, and regulation of informants in the Black community during slavery and the Black community’s response at that time. Despite potentially creating benefits such as crime control and sentence reduction, some Blacks today are convinced that cooperation with government investigations and prosecutions should be avoided. One factor contributing to this perspective is America’s reliance on Black informants to police and socially control Blacks during slavery, the Civil Rights Movement, and the Wars on Drugs, Crime and Gangs. Notwithstanding this historical justification for non-cooperation, only a few informant law and policy scholars have examined closely …

Enunciating Genocide: Crime, Rights And The Impact Of Judicial Intervention, Mark Findlay

Research Collection Yong Pung How School Of Law

As a consequence of recent decisions from the ICJ and the ICTR, it is clear that genocide can be pursued through the international courts both in terms of criminal liability and also rights/responsibility legal paradigms. This article suggests that this duality in possible contexts and processes of judicial determination, while being procedurally problematic, is in keeping with the human rights direction of international criminal justice. In addition, by opening the legal consideration of genocide to questions of individual liability as well as state-sponsored rights abuse, judges are now able to consider the more realistic complexity of genocide atrocity and thereby …

The Limits Of Prosecutorial Discretion In Singapore: Past, Present, And Future, Siyuan Chen

Research Collection Yong Pung How School Of Law

The exercise of prosecutorial discretion is a unique executive act that continues to be very well-protected from public scrutiny in many jurisdictions throughout the world. In this article, I attempt to survey virtually the entire body of case law on the limits of prosecutorial discretion in Singapore. Probably because prosecutorial discretion is protected by the Constitution, it took a while for the Singapore courts to retreat from its initial characterisation of the discretion as absolute and outside the scope of any form of review. Against a wider backdrop of increasing rights-consciousness (especially within the courts) and the public demand for …

What Makes A Crime Against Humanity A Crime Against Humanity?, Charles Chernor Jalloh

Faculty Publications

This article examines what makes a crime against humanity a crime against humanity as opposed to an ordinary offense under domestic criminal law. One answer is to say that any systematic or widespread attack against a civilian population which is sponsored, supported or condoned by the State is a crime against humanity. Another interpretation is that any widespread or systematic attacks against civilians which “infringe on basic human values” should be classified as crimes against humanity. This paper will use the Rome Statute and emerging case law of the International Criminal Court (ICC) to argue that neither of the two …

Provisional Arrest And Incarceration In The International Criminal Tribunals, Charles Chernor Jalloh, Melinda Taylor

Faculty Publications

This article examines the widely ignored but important issue regarding the provisional arrest and detention of persons suspected of having committed international crimes by international or internationalized courts. The paper examines the pioneer case law and practice of the United Nations International Criminal Tribunals for the former Yugoslavia and Rwanda, the Extraordinary Chambers in the Courts of Cambodia, and the Special Tribunal for Lebanon, as well as the emerging practice of the permanent International Criminal Court, to evaluate how these courts have generally addressed the rights of these individuals to due process and freedom from arbitrary arrest and detention before …

State V. Pardoned Individual, 138 Ohio St.3d 97 (2013) - Appellant's Reply Brief, Joann M. Sahl

Akron Law Faculty Publications

This reply brief submitted to the Ohio Supreme Court asserts that a pardon conclusively entitles the recipient to have their pardoned convictions sealed.

The Story Of Ewing: Three Strikes Laws And The Limits Of The Eighth Amendment Proportionality Review, Sara Sun Beale

Faculty Scholarship

In 1994 California enacted the nation's harshest "three strikes" law. Under this law, any felony can serve as a third strike, and conviction of a third strike requires a mandatory prison sentence of 25 years to life. In Ewing v. California, 538 U.S. 11 (2003), the Supreme Court held that sending a drug addict who shoplifted three golf clubs to prison for 25 years to life under the three strikes law did not violate the cruel and unusual punishment clause of the Eighth Amendment. The chapter for the forthcoming Criminal Law Stories tells the story of the Ewing case, describing …

Children Of Polyamorous Families: A First Empirical Look, Mark Goldfeder, Elisabeth Sheff

Scholarly Works

No abstract provided.

The Influence Of Systems Analysis On Criminal Law And Procedure: A Critique Of A Style Of Judicial Decision-Making, Bernard E. Harcourt

Faculty Scholarship

This draft analyzes the birth and emergence of the idea of the “criminal justice system” in the 1960s and the fundamentally transformative effect that the idea of a “system” has had in the area of criminal law and criminal procedure. The manuscript develops a critique of the systems analytic approach to legal and policy decision making. It then discusses how that critique relates to the broader area of public policy and contemporary cost-benefit analysis.

The draft identifies what it calls “the systems fallacy” or the central problem with approaching policy questions from a systems analytic approach: namely, the hidden normative …

Do Sexually Violent Predator Laws Violate Double Jeopardy Or Substantive Due Process?: An Empirical Inquiry, Tamara Rice, Justin Mccrary

Faculty Scholarship

In 1997, the Supreme Court held that the sexually violent predator (SVP) act in Kansas did not violate double jeopardy or substantive due process even though it indefinitely commits an individual to a locked state-run facility after that individual has completed a maximum prison term. In this article, we question a core empirical foundation for the Court’s holding in Hendricks: that SVPs are so dangerous that they will commit repeat acts of sexual violence if they are not confined. Our findings suggest that SVP laws have had no discernible impact on the incidence of sex crimes. These results challenge …

Strickland-Lite: Padilla’S Two-Tiered Duty For Noncitizens, César Cuauhtémoc García Hernández

Maryland Law Review

No abstract provided.

American Gangsters: Rico, Criminal Syndicates, And Conspiracy Law As Market Control, Benjamin Levin

Scholarship@WashULaw

In an effort to re-examine legal and political decisions about criminalization and the role of the criminal law in shaping American markets and social institutions, this Article explores the ways in which criminal conspiracy laws in the United States have historically been used to subdue non-state actors and informal markets that threatened the hegemony of the state and formal market. To this end, the Article focuses primarily on the Racketeer Influenced and Corrupt Organizations Act (RICO) as illustrative of broader trends in twentieth century criminal policy. Enacted in 1970, RICO provides criminal sanctions for individuals engaged in unacceptable organized activities …

Taxpayers As Victims: Taxpayer Harm & Criminalization, Brenner M. Fissell

Faculty Publications

No abstract provided.

De-Naturalizing Criminal Law: Of Public Perceptions And Procedural Protections, Benjamin Levin

Scholarship@WashULaw

In this essay, I examine and challenge the rhetorical trope of the guilty going free by emphasizing the institutional and political intricacies that comprise the criminal justice system and necessarily under-gird a determination of “guilt”. My goal, at its essence, is to de-naturalize the criminal law and discussions of the criminal justice system in the context of this symposium. I aim to emphasize that a guilty verdict is the result of a series of (politically-inflected) decisions about how to draft criminal statutes, how to structure a trial, and how to select a jury. De-naturalizing criminal law is, of course, a …

Policing, Crime, And Legitimacy In New York And Los Angeles: The Social And Political Contexts Of Two Historic Crime Declines, Jeffrey Fagan, John Macdonald

Faculty Scholarship

This chapter tells the story of policing, crime, and the search for legitimacy over the past two decades in Los Angeles and New York City. Throughout this complex political, normative, and legal landscape, crime rates dropped dramatically in each city to levels not seen since the early 1960s. The chapter begins with a discussion of the evolution of policing in the two cities, assessing reciprocal and dynamic changes that reflected both the crises of crime epidemics and crises within the police. Next, it examines the role of litigation on the evolution of policing. Policing regimes in each city were challenged …