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Articles 11041 - 11070 of 27728

Full-Text Articles in Criminal Law

Overcriminalization For Lack Of Better Options: A Celebration Of Bill Stuntz, Daniel C. Richman Jan 2012

Overcriminalization For Lack Of Better Options: A Celebration Of Bill Stuntz, Daniel C. Richman

Faculty Scholarship

The unity of Bill Stuntz's character – his profound integrity – makes it easy to move from a celebration of his friendship (which I’ve treasured since we first met back in 1985) to one of his scholarship, for creativity, wisdom, and humility are strengths not just of Bill himself but of his work. Even as his broad brush strokes have fundamentally advanced our understanding of the interplay between substantive criminal law, criminal procedure, and criminal justice institutions over time, Bill's work – like Bill himself – welcomes and endures sustained engagement. Humility is appropriate for me, too, as I offer …

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Law, Economics, And The Burden(S) Of Proof, Eric L. Talley Jan 2012

Law, Economics, And The Burden(S) Of Proof, Eric L. Talley

Faculty Scholarship

This chapter presents an overview of the theoretical law and economics literature on the burden of proof within tort law. I begin by clarifying core legal definitions within this topic, demonstrating that the burden of proof actually refers to at least five doctrinal concepts that substantially overlap but are not completely interchangeable. I then provide a conceptual roadmap for analyzing the major extant contributions to this topic within theoretical law and economics, emphasizing three key dimensions that organize them: (a) where they fall in the positive-normative spectrum; (b) what type of underlying modeling framework they employ (ranging from decision theoretic …

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Is Strict Criminal Liability In The Grading Of Offenses Consistent With Retributive Desert?, Kenneth Simons Jan 2012

Is Strict Criminal Liability In The Grading Of Offenses Consistent With Retributive Desert?, Kenneth Simons

Faculty Scholarship

Notwithstanding the demands of retributive desert, strict criminal liability is sometimes defensible when the strict liability pertains, not to whether conduct is to be criminalized at all, but to the seriousness of the actor’s crime. Suppose an actor commits an intentional assault or rape, and accidentally brings about a death. Punishing the actor more seriously because the death resulted is sometimes justifiable, even absent proof of his independent culpability as to the death. But what punishment is proportionate for such an actor? Should he be punished as harshly as an intentional or knowing killer?

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Aedpa Mea Culpa, Larry Yackle Jan 2012

Aedpa Mea Culpa, Larry Yackle

Faculty Scholarship

In this essay, the author contends that the Antiterrorism and Effective Death Penalty Act of 1996 [AEDPA] has frustrated both the enforcement of federal rights and legitimate state interests. He lays most of the blame on the Supreme Court's methodology for construing AEDPA's provisions. The Court insists that poorly conceived and drafted provisions must be taken literally, whatever the consequences, and that every provision must be read to change habeas corpus law in some way. This approach has produced unfair, wasteful, and even bizarre results that might have been avoided if the Court had assessed AEDPA more realistically.

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Requiring Miranda Warnings For The Christmas Day Bomber And Other Terrorists, Malvina Halberstam Jan 2012

Requiring Miranda Warnings For The Christmas Day Bomber And Other Terrorists, Malvina Halberstam

Articles

No abstract provided.

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Why Do Criminals Obey The Law? The Influence Of Legitimacy And Social Networks On Active Gun Offenders, Andrew V. Papachristos, Tracey L. Meares, Jeffery Fagan Jan 2012

Why Do Criminals Obey The Law? The Influence Of Legitimacy And Social Networks On Active Gun Offenders, Andrew V. Papachristos, Tracey L. Meares, Jeffery Fagan

Faculty Scholarship

Research on procedural justice and legitimacy suggests that compliance with the law is best secured not by mere threat offorce, but by fostering beliefs in the fairness of the legal systems and in the legitimacy of legal actors. To date, however, this research has been based on general population surveys and more banal types of law-violating behavior (such as unpaid parking tickets, excessive noise, etc.). Thus, while we know why the average citizen obeys the law, we do not have similar knowledge about populations most likely to commit serious violent crimes. This study fills that void by using a unique …

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Possession And Knowledge In The Misuse Of Drugs Act: Nagaenthran A/L K Dharmalingam V. Public Prosecutor, Siyuan Chen, Nathaniel Poon-Ern Khng Jan 2012

Possession And Knowledge In The Misuse Of Drugs Act: Nagaenthran A/L K Dharmalingam V. Public Prosecutor, Siyuan Chen, Nathaniel Poon-Ern Khng

Research Collection Yong Pung How School Of Law

When the Court of Appeal rendered the decision of Tan Kiam Peng in 2008, it was unable to come to a conclusive determination of the correct interpretation of s. 18(2) of the Misuse of Drugs Act, a provision pertaining to the presumption of an accused’s knowledge of the nature of the controlled drugs in his possession. This issue was presented to a differently constituted Court of Appeal in Nagaenthran, which seemingly ruled in favour of the narrow interpretation of s. 18(2) as opposed to the broader interpretation. Nagaenthran, however, did not address the questions raised by Tan Kiam Peng vis-à-vis …

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Of Trayvon Martin, George Zimmerman, And Legal Expressivism: Why Massachusetts Should Stand Its Ground On "Stand Your Ground", Louis N. Schulze Jr. Jan 2012

Of Trayvon Martin, George Zimmerman, And Legal Expressivism: Why Massachusetts Should Stand Its Ground On "Stand Your Ground", Louis N. Schulze Jr.

Faculty Publications

This essay suggests that the expressive impact of Stand Your Ground laws alters the shared norms governing our collective understanding of the moral limits of “self-defense.” The essay argues that the theory of Legal Expressivism can explain the widespread misunderstanding of the limits of self-defense, as demonstrated by the institutional and popular reactions to the killing of Trayvon Martin by George Zimmerman. To support this thesis, the piece briefly explains Stand Your Ground statutes and legal expressivism. It then details the nature of the expressive function of these statutes and asserts that Massachusetts, which recently considered the adoption of such …

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A Neurological Foundation For Freedom, Nita A. Farahany Jan 2012

A Neurological Foundation For Freedom, Nita A. Farahany

Faculty Scholarship

No abstract provided.

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The Innocence Effect, Avishalom Tor, Oren Gazal-Ayal Jan 2012

The Innocence Effect, Avishalom Tor, Oren Gazal-Ayal

Journal Articles

Nearly all felony convictions - about 95 percent - follow guilty pleas, suggesting that plea offers are very attractive to defendants compared to trials. Some scholars argue that plea bargains are too attractive and should be curtailed because they facilitate the wrongful conviction of innocents. Others contend that plea bargains only benefit innocent defendants, providing an alternative to the risk of a harsher sentence at trial. Hence, even while heatedly disputing their desirability, both camps in the debate believe that plea bargains commonly lead innocents to plead guilty. This Article shows, however, that the belief that innocents routinely plead guilty …

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Response: One Market We Do Not Need, Giovanna Shay Jan 2012

Response: One Market We Do Not Need, Giovanna Shay

Faculty Scholarship

The Author responds to Alexander Volokh’s, Prison Vouchers, 160 U. Pa. L. Rev. 779 (2012). She argues that Professor Volokh is right that American prisons are considered to be “low quality,” and that they suffer from “high violence rates, bad medical care, [and] overuse of highly punitive measures like administrative segregation . . . .” But his proposed solution—a system of “prison vouchers” that would permit prisoners to choose their facilities and thus create a market for prison services—would provide only an illusion of choice. Even worse, such a system runs the risk of strengthening the self-interested forces that drive …

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Illich (Via Cayley) On Prisons, Giovanna Shay Jan 2012

Illich (Via Cayley) On Prisons, Giovanna Shay

Faculty Scholarship

This Article considers whether, more than a dozen years after publication of Cayley’s book "The Expanding Prison: The Crisis in Crime and Punishment and the Search for Alternatives," Illich’s theories help us to make sense of America’s “prison-industrial complex.” The Author concludes that our current situation reflects in part the dynamics of his theory of “counterproductivity,” but that Illich did not take sufficient account of the salience of race and class in American criminal punishment.

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Inside-Out As Law School Pedagogy, Giovanna Shay Jan 2012

Inside-Out As Law School Pedagogy, Giovanna Shay

Faculty Scholarship

In the fall of 2010, and again in spring 2012, the Author taught a course entitled Gender & Criminal Law inside the Western Massachusetts Correctional Alcohol Center in Springfield. Participants in the course included roughly equal numbers of law students from the Author's home academic institution, Western New England University School of Law, and residents of the facility. For fourteen weeks, the class met weekly at the institution to discuss issues including domestic violence law reform, the role of family ties in sentencing, and gender issues in prisoner reentry. The Author taught this course in a modified form of the …

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Frye And Lafler: No Big Deal, Gerard E. Lynch Jan 2012

Frye And Lafler: No Big Deal, Gerard E. Lynch

Faculty Scholarship

The only surprise about the Supreme Court’s recent decisions in Missouri v. Frye and Lafler v. Cooper is that there were four dissents. The decisions are straightforward recognitions that the defendants in those cases received unquestionably derelict representation, to their considerable prejudice. The decisions do not represent a novelty in the law, but rather continue the longstanding recognition by the courts that “plea bargaining” is an integral part of our criminal justice system – indeed, I have argued at length that it is our criminal justice system – and that minimal competence of defense lawyers in dealing with that process …

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The Law And Economics Of Fluctuating Criminal Tendencies And Incapacitation, Murat C. Mungan Jan 2012

The Law And Economics Of Fluctuating Criminal Tendencies And Incapacitation, Murat C. Mungan

Maryland Law Review

No abstract provided.

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Blue-Collar Crime: Conspiracy, Organized Labor, And The Anti-Union Civil Rico Claim, Benjamin Levin Jan 2012

Blue-Collar Crime: Conspiracy, Organized Labor, And The Anti-Union Civil Rico Claim, Benjamin Levin

Scholarship@WashULaw

This Article provides an historically-rooted analysis of a recent spate of civil RICO complaints arising from labor union organizing campaigns. The Article historicizes contemporary civil RICO suits against labor unions by analogizing to nineteenth century conspiracy prosecutions of unions. In tracing this history of organized labor’s social standing, the Article addresses the cultural framing of the union and its place in political and cultural discourse over the past century. The civil RICO complaints have received limited scholarly attention mainly focusing on issues of federal preemption; this Article argues for a broad reading of the cases as a way to understand …

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On The American Paradox Of Laissez Faire And Mass Incarceration, Bernard E. Harcourt Jan 2012

On The American Paradox Of Laissez Faire And Mass Incarceration, Bernard E. Harcourt

Faculty Scholarship

In The Illusion of Free Markets (Harvard 2011), Professor Bernard Harcourt analyzes the evolution of a distinctly American paradox: in the country that has done the most to promote the idea of a hands-off government, we run the single largest prison complex in the entire world. Harcourt traces this paradox back to the eighteenth century and demonstrates how the presumption of government incompetence in economic affairs has been coupled with that of government legitimacy in the realm of policing and punishing. Harcourt shows how these linked presumptions have fueled the expansion of the carceral sphere in the nineteenth and twentieth …

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Does The Lawyer Make A Difference? Public Defender V. Appointed Counsel, Peter A. Joy, Kevin C. Mcmunigal Jan 2012

Does The Lawyer Make A Difference? Public Defender V. Appointed Counsel, Peter A. Joy, Kevin C. Mcmunigal

Scholarship@WashULaw

A recent study found that poor criminal defendants in Philadelphia who were represented by court-appointed private lawyers were more often found guilty and sentenced to more time in prison than similarly situated defendants represented by public defenders. In this column, we review the details of the study, its findings, and its ethical and constitutional implications.

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General Equilibrium Effects Of Prison On Crime: Evidence From International Comparisons, Justin Mccrary, Sarath Sanga Jan 2012

General Equilibrium Effects Of Prison On Crime: Evidence From International Comparisons, Justin Mccrary, Sarath Sanga

Faculty Scholarship

We compare crime and incarceration rates over time for the United States, Canada, and England and Wales, as well as for a small selection of comparison countries. Shifts in U.S. punishment policy led to a five-fold increase in the incarceration rate, while nearly every other country experienced only minor increases in incarceration. The large shifts in U.S. punishment policy do not seem to have caused commensurately large improvements in public safety.

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The Texas Deterrence Muddle, Jeffrey A. Fagan, Amanda Geller, Franklin E. Zimring Jan 2012

The Texas Deterrence Muddle, Jeffrey A. Fagan, Amanda Geller, Franklin E. Zimring

Faculty Scholarship

The ongoing debate about capital punishment in the United States juggles several contentious questions. Innocence, cost, racial fairness, proportionality, retributivist calculus, and deterrence concerns thread a literature whose richness testifies to the endurance of capital punishment in American legal and political culture. For proponents of capital punishment, the connection between the moral and utilitarian or consequentialist positions trumps all other concerns: They suggest that if the death penalty can prevent – through the incapacitation of the offender and general deterrence of would-be killers – the loss of even one innocent life from murder, then execution is a morally justified or …

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Wrongful Convictions Do Lower Deterrence, Nuno Garoupa, Matteo Rizzolli Jan 2012

Wrongful Convictions Do Lower Deterrence, Nuno Garoupa, Matteo Rizzolli

Faculty Scholarship

The conventional result of the theory of the public enforcement of law is that wrongful convictions of innocents are detrimental to deterrence. This proposition has been challenged recently. In some cases, wrongful convictions do not jeopardize deterrence, because they influence equally the innocent and the guilty. Therefore deterrence does not change. We show that, in general, wrongful convictions do lower deterrence. We prove that wrongful convictions do not jeopardize deterrence only in very limited circumstances or under unlikely assumptions.

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Is The Exclusionary Rule Dead?, Craig M. Bradley Jan 2012

Is The Exclusionary Rule Dead?, Craig M. Bradley

Articles by Maurer Faculty

In three recent decisions, Hudson v. Michigan, Herring v. United States, and last Term's Davis v. United States, the Supreme Court has indicated a desire to severely restrict the Fourth Amendment exclusionary rule. A majority of the Justices wants to limit its application to cases where the police have violated the Fourth Amendment purposely, knowingly, or recklessly, but not where they have engaged in "simple, isolated negligence" or where negligence is "attenuated" from the discovery of the evidence. They have further suggested that evidence should not be excluded where the police have behaved as reasonable policemen, using the approach from …

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Superheroes, Bandits, And Cyber-Nerds: Exploring The History And Contemporary Development Of The Vigilante, Stephanie Juliano Jan 2012

Superheroes, Bandits, And Cyber-Nerds: Exploring The History And Contemporary Development Of The Vigilante, Stephanie Juliano

Scholarly Works

This article will first discuss what defines a vigilante, the history of vigilantes, and the contemporary vigilante's effect on the legal system as a whole. Also, this article will focus on those scenarios that bring an ordinary person to react in an illegal way to a perceived injustice. In focusing on these scenarios, this article will examine a little more closely the answers of deeper questions about the nature of law and justice, and their roles in the accelerating world of new media.

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Ipeelee And The Pursuit Of Proportionality In A World Of Mandatory Minimum Sentences, Debra Parkes Jan 2012

Ipeelee And The Pursuit Of Proportionality In A World Of Mandatory Minimum Sentences, Debra Parkes

All Faculty Publications

The law of sentencing in Canada is being pulled in opposing directions: Parliament regularly legislates new mandatory sentences that limit judicial discretion while the Supreme Court strongly affirms the “highly individualized” nature of sentencing. Mandatory sentences have proliferated in recent years, contrary to overwhelming social science evidence that they do not deliver on their promises of deterrence and crime control, and largely unimpeded by the Charter. However, the recent decision in R v Ipeelee arguably puts the principles relevant to the sentencing of Aboriginal people on a collision course with the substantial limits on judicial discretion that are central to …

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Gladue: Beyond Myth And Towards Implementation In Manitoba, Debra Parkes, David Milward Jan 2012

Gladue: Beyond Myth And Towards Implementation In Manitoba, Debra Parkes, David Milward

All Faculty Publications

In the mid-1990s, section 718.2(e) of the Criminal Code of Canada was enacted in response to the alarming over-representation of Aboriginal people in Canada’s prisons and jails. Its admonition to consider “all available sanctions other than imprisonment that are reasonable in the circumstances… with particular attention to the circumstances of Aboriginal offenders” requires, according to the Supreme Court in the leading case of R v Gladue, that justice system participants do things differently in sentencing Aboriginal people. However, in the ensuing years the level of over-representation has got worse, rather than better. There are a number of different explanations that …

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From Smith To Smickle: The Charter's Minimal Impact On Mandatory Minimum Sentences, Debra Parkes Jan 2012

From Smith To Smickle: The Charter's Minimal Impact On Mandatory Minimum Sentences, Debra Parkes

All Faculty Publications

This paper attempts to assess the impact that the Canadian Charter of Rights and Freedoms has had, and may have in the near future, on mandatory minimum sentences and their legislated proliferation. To answer those questions, the paper first briefly reviews the Supreme Court of Canada case law on the constitutionality of mandatory minimum sentences. The next two sections will outline the approach taken in the recent Smickle decision in the Ontario Superior Court of Justice before moving on to argue that courts should subject the purported goals, justifications and implications of mandatory minimum sentences to a more searching form …

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Overdetermined Atrocities, James G. Stewart Jan 2012

Overdetermined Atrocities, James G. Stewart

All Faculty Publications

An event is overdetermined if there are multiple sufficient causes for its occurrence. A firing squad is a classic illustration. If eight soldiers are convened to execute a prisoner, they can all walk away afterwards in the moral comfort that “I didn’t really make a difference; it would have happened without me.” The difficulty is, if we are only responsible for making a difference to harm occurring in the world, none of the soldiers is responsible for the death — none made, either directly or through others, an essential contribution to its occurrence. In many respects, this dilemma is the …

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Taking Threats Seriously: Section 264.1 And Threats As A Form Of Domestic Violence, Joanna Birenbaum, Isabel Grant Jan 2012

Taking Threats Seriously: Section 264.1 And Threats As A Form Of Domestic Violence, Joanna Birenbaum, Isabel Grant

All Faculty Publications

An alarming number of women are in abusive relationships where violence and threats of violence pervade their lives. This article examines the offence of uttering threats in the Canadian Criminal Code, using the Manitoba Court of Appeal decision in R v O’Brien as a backdrop. We make two arguments. First, we argue that, in intimate relationships, threats of death and bodily harm are a form of domestic violence, often used by men in concert with physical violence and other forms of intimidation to control and dominate women. The Canadian criminal justice response to charges of uttering threats in intimate partner …

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A Tale Of Two Cases: Urging Caution In The Prosecution Of Hiv Non-Disclosure, Isabel Grant, Jonathan Glenn Betteridge Jan 2012

A Tale Of Two Cases: Urging Caution In The Prosecution Of Hiv Non-Disclosure, Isabel Grant, Jonathan Glenn Betteridge

All Faculty Publications

Two provincial Courts of Appeal have recently released unanimous decisions that clarify the law regarding the obligation imposed upon people living with HIV to disclose their HIV status prior to sexual relations. The decision of the Manitoba Court of Appeal in R v. Mabior and of the Quebec Court of Appeal in R c. D.C. must be seen against a background of increasing criminal prosecutions in Canada of people with HIV who allegedly do not disclose their HIV status to sexual partners. Since the first HIV nondisclosure prosecution in 1989, there have been over 120 prosecutions. A high proportion of …

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The Normal Ones Take Time': Civil Commitment And Sexual Assault In R. V. Alsadi, Isabel Grant Jan 2012

The Normal Ones Take Time': Civil Commitment And Sexual Assault In R. V. Alsadi, Isabel Grant

All Faculty Publications

This comment addresses the issue of whether a woman who is civilly committed in a psychiatric facility can ever give a valid consent to sexual activity with someone employed by that facility to ensure her safety and protection. The paper argues that such a consent would be involuntary and invalid because it was obtained as a result of an abuse of a position of trust. It is argued that the imbalance of power between a civilly committed psychiatric patient and, in Alsadi, a security guard employed by the hospital is so significant that no meaningful or voluntary consent can be …

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