Criminal Law Commons^™

Prosecution Of Genocide V. The Fair Trial Principle: Comments On Brown And Others V. The Government Of Rwanda And The Uk Secretary Of State For The Home Department, Mark A. Drumbl

Scholarly Articles

The article examines the 2009 decision of the United Kingdom High Court of Justice to deny the extradition of four genocide suspects to Rwanda owing to fair trial and partiality concerns with the Rwandan judiciary. It begins by reviewing the relevant UK extradition legislation, the pertinent facts and the rationale for the judgment and proceeds to situate this decision within the broader transnational judicial scepticism about the extradition or transfer of genocide suspects to Rwanda. While this scepticism arises from valid concerns regarding the contemporary state of human rights in Rwanda, it nevertheless contributes to the perpetuation of impunity surrounding …

The Process Is The Problem: Lessons Learned From United States Drug Sentencing Reform, Erik S. Siebert

University of Richmond Law Review

No abstract provided.

Herring V. United States: Mapp's "Artless" Overruling?, Michael Vitiello

Nevada Law Journal

The central thesis of this essay is that, consistent with the “art of overruling,” the Court could have limited Mapp, for example, by extending the good-faith reasonable mistake rationale that animates cases like United States v. Leon. As developed below, the facts of Herring are quite similar to the facts of other cases where the Court upheld police conduct that, although erroneous, seemed reasonable; accordingly, excluding the illegally obtained evidence had no value as a deterrent of future conduct in light of the reasonableness of the police officer's mistake. However, Herring goes much further and points towards a much greater …

Twenty-Eight Words: Enforcing Corporate Fiduciary Duties Through Criminal Prosecution Of Honest Services Fraud, Lisa L. Casey

Journal Articles

This article examines the federal government's growing use of 18 U.S.C. § 1346 to prosecute public company executives for breaching their fiduciary duties. Section 1346 is a controversial but under-examined statute making it a felony to engage in a scheme "to deprive another of the intangible right of honest services." Although enacted by Congress over twenty years ago, the Supreme Court repeatedly declined to review the statute, until now. In 2009, Justice Antonin Scalia pointed to the numerous interpretive questions dividing the federal appellate courts and proclaimed that it was "quite irresponsible" to let the "current chaos prevail." Since then, …

Megan's Law And Sarah's Law: A Comparative Study Of Sex Offender Community Notification Schemes In The United States And The United Kingdom, Lissa Griffin

Elisabeth Haub School of Law Faculty Publications

The United Kingdom developed a sex offender register and Sarah's Law' in an effort to keep communities safe from sex offenders. However, Sarah's Law is quite different from Megan's Law, particularly because there is no direct public access to the United Kingdom's Sex Offender Register. Part II of this article analyzes the history of sex offender registration and community notification under Megan's Law in the United States. Part III examines the United Kingdom's approach to sex offender registration and community notification via Sarah's Law. Part IV explores the distinctly different approaches to community notification in the United States and the …

Preventive Detention, Character Evidence, And The New Criminal Law, Ted Sampsell-Jones

Faculty Scholarship

A new criminal law has emerged in the last quarter century. The dominant goal of the new criminal law is preventive detention-incarceration to incapacitate dangerous persons. The emergence of the new criminal law has remade both sentencing law and definitions of crimes themselves. The new criminal law has also begun to remake the law of evidence. As incapacitation has become an accepted goal of criminal punishment, the rationale of the character rule has become less compelling, and the rule itself has begun to wane in criminal practice. These changes have been subtle, but they have also been both radical and …

The Effects Of "Blue Magic": A Call To Punish Criminal Organizations That Benefit From The Use Of Trademarks, 9 J. Marshall Rev. Intell. Prop. L. 912 (2010), Thomas J. Kelley

UIC Review of Intellectual Property Law

Throughout history, criminal organizations have produced, packaged, transported, marketed, and sold illegal products. These organizations and their individual members can be punished for all of the steps in this process, except one: marketing. These groups routinely market their products with trademarks affixed to the illegal products they sell, and benefit from these trademarks the same way a company like the Coca-Cola Company benefits from its trademarks. Criminal organizations should not be free to use trademarks without fear of any additional punishment for doing so. Congress and the United States Sentencing Commission should look at this issue to determine an appropriate …

Closing Loopholes Or Creating More? Why A Narrow Application Of Sorna Threatens To Defeat The Statute’S Purpose, Terra R. Lord

Oklahoma Law Review

No abstract provided.

Over-Kill: The Ramifications Of Applying New York's Anti-Terrorism Statute Too Broadly, Louis Jim

Faculty Scholarship

No abstract provided.

Jurists For Jesus, Barbara L. Atwell

Elisabeth Haub School of Law Faculty Publications

This article focuses on Jesus’ fundamental mandate to ―love your neighbor as yourself. These five words encompass two prongs: honoring every individual (yourself), and caring for the human community as a whole (Your neighbor). This article refers to these two fundamental prongs as the Jesus Principles. An individual does not need to be a Christian or otherwise religious to embrace the Jesus Principles; in fact, they are universal. Developing laws and policies consistent with the basic concept of love reflected in the Jesus Principles can guide us toward a more just society.

“Hard Strikes And Foul Blows”: Berger V. United States 75 Years After, Bennett L. Gershman

Elisabeth Haub School of Law Faculty Publications

My essay examines one of the most iconic decision of the Supreme Court seventy five years later. Berger v. United States is the most eloquent and authoritative description of the prosecutor's duty "not that it shall win a case but that justice shall be done." My essay looks at why the Court decided to take up the case then, and why it has become so prominent in criminal law and ethics.

Liberty Lost: The Moral Case For Marijuana Law Reform, Eric Blumenson, Eva Nilsen

Indiana Law Journal

Marijuana policy analyses typically focus on the relative costs and benefits of present policy and its feasible alternatives. This Essay addresses a prior, threshold issue: whether marijuana criminal laws abridge fundamental individual rights, and if so, whether there are grounds that justify doing so. Over 700, 000 people are arrested annually for simple marijuana possession, a small but significant proportion of the 100 million Americans who have committed the same crime. In this Essay, we present a civil libertarian case for repealing marijuana possession laws. We put forward two arguments corresponding to the two distinct liberty concerns implicated by laws …

Forfeiture Of The Right To Counsel: A Doctrine Unhinged From The Constitution, Stephen A. Gerst

Cleveland State Law Review

The author contends that the doctrine of forfeiture of the right to assistance of counsel as a sanction for misconduct by a defendant towards the court or his counsel has no constitutional support in the principles that have defined the Sixth Amendment, is arbitrary in its application within the judicial system, and has become a refuge for courts, which have inadequately complied with established principles to protect fundamental rights.

Evaluating Children's Competency To Testify: Developing A Rational Method To Assess A Young Child's Capacity To Offer Reliable Testimony In Cases Alleging Child Sex Abuse , Laurie Shanks

Cleveland State Law Review

This Article discusses the testimony of young children, the inadequacy of the traditional hearing used to determine the competency of such children to testify, and the ways in which the hearing might be changed to make it a meaningful process for determining the ability of a child to give reliable testimony.

International Criminal Courts And The Making Of Public International Law: New Roles For International Organizations And Individuals, Kenneth S. Gallant

Law Faculty Scholarship

Judicial decisions of the International Criminal Court and other international criminal tribunals now serve as instances of practice and statements of opinio juris for the formation of customary international criminal law and customary international human rights law related to criminal law and procedure. In these areas of law and others, they are no longer “subsidiary” sources as that word is used in the International Court of Justice Statute, Art. 38. In the same fields of customary international law, other binding acts of international organizations, such as the UN Security Council, are also used as practice, and the statements of these …

Criminal Defence And The International Legal Personality Of The Individual, Kenneth S. Gallant

Law Faculty Scholarship

Since the beginning of the Nuremberg trial, the status of the individual in international law has changed. This change is intimately connected with the right of defense in criminal proceedings, especially international criminal proceedings. Today, as a matter of right, the individual may make certain claims in international law, and especially international criminal law and international human rights law related to criminal procedure and substantive criminal law, without relying on a state to make them on his or her behalf. This article explores this development of the international legal personality of individuals. It also considers some of the limits of …

What Is Changing? 'The Future Is Not What It Used To Be', Michael A. Wolff

All Faculty Scholarship

The editors of the Federal Sentencing Reporter asked a number of experts on sentencing in 2008 to write short pieces on what they expected after a "change" election. In 2010 the editors asked: what changed? Judge Wolff’s response, which concentrates on the states, is that the states’ dire financial conditions and the effect of the California marijuana legalization proposition, which gathered serious support but failed, have affected the public’s perceptions of sentencing policy. The public and their representatives are trying more to be smart on crime rather than tough on crime, and the public is becoming increasingly skeptical of the …

Reply: Clawback To The Future, Miriam A. Cherry, Jarrod Wong

All Faculty Scholarship

In an earlier article also available on Scholarship Commons, Clawbacks: Prospective Contract Measures in an Era of Excessive Executive Compensation and Ponzi Schemes, Minnesota Law Review, Vol. 94, p. 368, 2009, Professors Miriam Cherry and Jarrod Wong set out an initial description and analysis of contractual clawback provisions. In this Reply, Profs. Cherry and Wong address three aspects of Michael Macchiarola's Response: its application of the clawback doctrine to the recoupment of executive compensation; the criticism that the clawbacks doctrine introduces latent subjectivity into contractual analysis; and the apparent operational difficulties in implementing clawbacks.

Bentham On Stilts: The Bare Relevance Of Subjectivity To Retributive Justice, Dan Markel, Chad Flanders, David C. Gray

All Faculty Scholarship

In recent work, various scholars have challenged retributive justice theorists to pay more attention to the subjective experience of punishment, specifically how punishment affects the experiences and well-being of offenders. The claim developed by these “subjectivists” is that because people’s experiences with pain and suffering differ, both diachronically and inter-subjectively, their punishments will have to be tailored to individual circumstances as well.

Our response is that this set of claims, once scrutinized, is either true, but of limited significance, or nontrivial, but unsound. We don’t doubt the possibility that different people will react differently to the same infliction of punishment. …

Unasked (And Unanswered) Questions About The Role Of Neuroimaging In The Criminal Trial Process, Michael L. Perlin, Valerie Mcclain

Articles & Chapters

The robust neuroimaging debate has dealt mostly with philosophical questions about free will, responsibility, and the relationship between brain abnormalities, violence and crime. This debate, however, obscures several important issues of criminal procedure to which little attention has as of yet been paid: 1) an indigent defendant's right of access to expert testimony in cases where neuroimaging tests might be critical, 2) a defendant's competency to consent to the imposition of a neuroimaging test; and 3) the impact of antipsychotic medications on a defendant's brain at the time that such a test is performed. This article will consider these questions …

Right Problem; Wrong Solution, Joseph L. Hoffmann, Nancy J. King

Articles by Maurer Faculty

No abstract provided.

Coercing Voluntariness, Wadie E. Said

Indiana Law Journal

No abstract provided.

Decriminalizing Border Crossings, Victor C. Romero

Faculty Scholarship

An international border crosser should only be deemed a criminal if the United States government can prove that, with requisite criminal intent, she engaged in an act aside from crossing the border that would constitute a crime. No longer should crossing the border be a strict liability criminal offense. Doing so will restore balance to the civil immigration system, conserve scarce enforcement resources to target truly criminal behavior, enhance our standing abroad, and help heal our racially-polarized discourse on immigration policy.

Preserving The Corporate Attorney-Client Privilege, Katrice Bridges Copeland

Faculty Scholarship

This Article argues that, while legislation such as the Attorney-Client Privilege Protection Act ("ACPPA") is necessary to preserve that corporate attorney-client privilege, any such legislation must include judicial oversight to deter prosecutorial misconduct effectively. Part II examines the costs and benefits of granting corporations the attorney-client privilege in criminal investigations. It concludes that the benefits of the privilege fat outweigh the costs and that the privilege must be safeguarded from unnecessary infringement. Part III traces the evolution of the DOJ's waiver policies that have threatened the corporate attorney-client privilege. It also examines the costs and benefits of the waiver policy …

The Geography Of Criminal Law, Adam Benforado

Cardozo Law Review

When Westerners explain the causes of actions or outcomes in the criminal law context, they demonstrate a strong tendency to overestimate the importance of dispositional factors, like thinking, preferring, and willing, and underestimate the impact of interior and exterior situational factors, including environmental, historical, and social forces, as well as affective states, knowledge structures, motives, and other unseen aspects of our cognitive frameworks and processes. One of the situational factors that we are particularly likely to overlook is physical space - that is, landscapes, places, natures, boundaries, and spatialities. Our shortsightedness comes at a great cost. Spatial concerns shape legal …

Social Welfare And Fairness In Juvenile Crime Regulation, Elizabeth S. Scott, Laurence Steinberg

Faculty Scholarship

The question of how lawmakers should respond to developmental differences between adolescents and adults in formulating juvenile crime policy has been the subject of debate for a generation. A theme of the punitive law reforms that dismantled the traditional juvenile justice system in the 1980s and 1990s was that adolescents were not different from adults in any way that was relevant to criminal punishment – or at least that any differences were trumped by the demands of public safety. But this view has been challenged in recent years; scholars and courts have recognized that adolescents, due to their developmental immaturity, …

Jurors And Social Loafing: Factors That Reduce Participation During Jury Deliberations, Cynthia J. Najdowski

Psychology Faculty Scholarship

The American jury system rests on the fundamental assumption that jurors will engage in a thorough analysis of facts and robust debate to ensure that verdicts are reliable. Research demonstrates, however, that this expectation is rarely met. All jurors do not participate equally in deliberations. This may be explained in part by social loafing, or the withdrawal of effort that may occur when an individual works in a group relative to when the individual works alone. Despite evidence that jurors do not participate equally during jury deliberations, an analysis of factors contributing to participation, or the lack thereof, has not …

Public Attitudes Toward Applying Sex Offender Registration Laws To Juvenile Offenders, Jessica M. Salerno, Margaret C. Stevenson, Tisha R. A. Wiley, Cynthia J. Najdowski, Bette L. Bottoms, Rachel A. Schmillen

Psychology Faculty Scholarship

In this chapter, we provide a summary of current registration laws for juvenile sex offenders across the United States and discuss the assumptions that drive these laws. We consider whether these assumptions have been supported or refuted by the research produced on the topic thus far. Then, turning to new data from our own laboratory, we discuss public perceptions of registration laws. This is an important issue because expansion of registry laws to juveniles might be driven by strong public support—or politicians' and policy makers' perceptions that there is public support—for expansion of the registry. As we discuss, research does …

Legislatures, Judges, And Parole Boards: The Allocations Of Discretion Under Determinate Sentencing, Dhammika Dharmapala, Nuno Garoupa, Joanna Shepherd

Faculty Articles

The most significant development in criminal sentencing in recent decades has been the shift from indeterminate to determinate sentencing. Yet no study has systematically explored the factors leading to this shift. In this Article, we provide the first analysis to explain why state legislatures enact reforms that significantly reduce both judges’ and parole boards’ discretion over criminal sentencing. First, we develop a political economy model that explains why legislatures acting in their own self-interest may be motivated to enact these laws. Our model predicts that legislatures are more likely to enact determinate sentencing reforms when there is tension among the …

Making The Punishment Fit The (Computer) Crime: Rebooting Notions Of Possession For The Federal Sentencing Of Child Pornography Offenses, Jelani Jefferson Exum

Richmond Journal of Law & Technology

Sexual exploitation of children is a real and disturbing problem. However, when it comes to the sentencing of child pornography possessors, the U.S. federal system has a problem, as well. This Article adds to the current, heated discussion on what is happening in the sentencing of federal child pornography possession offenses, why nobody is satisfied, and how much the Federal Sentencing Guidelines are to blame. At the heart of this Article are the forgotten players in the discussion—computers and the Internet—and their role in changing the realities of child pornography possession. This Article argues that computers and the Internet are …