Criminal Law Commons^™

The Rise Of Spanish And Latin American Criminal Theory, Luis E. Chiesa

Journal Articles

No abstract provided.

Why Is It A Crime To Stomp On A Goldfish? - Harm, Victimhood And The Structure Of Anti-Cruelty Offenses, Luis E. Chiesa

Journal Articles

No abstract provided.

Of Persons And The Criminal Law: (Second Tier) Personhood As A Prerequisite For Victimhood, Luis E. Chiesa

Journal Articles

This article examines the implications of the Michael Vick case for the criminal law in general and for the law of victimhood in particular. It takes as its point of departure the NFL star's agreement to pay close to one million dollars to the various entities that assumed custody of the pit bulls in order to "make restitution for the full amount of the costs associated with the disposition of all dogs" that were involved in his illegal operation. According to the agreement, the authority to order such payments stems from 18 U.S.C. ý 3663, which allows for the issuance …

Testing Japan's Convictions: The Lay Judge System And The Rights Of Criminal Defendants, Arne F. Soldwedel

Vanderbilt Journal of Transnational Law

Japan has endured considerable international and domestic criticism over the way its criminal justice system treats criminal defendants. The system shows little regard for defendants' constitutional rights, and media reports about forced confessions and wrongful convictions are creating grassroots pressures to uphold the right to counsel, the right to silence, and the presumption of innocence.

Japan has begun to reform its legal system in order to increase public participation in government, and to create more public trust in the justice system. To achieve these aims, Japan will reintroduce jury trials in May of 2009. However, current Japanese justice reforms ignore …

The More Things Change: A Psychological Case Against Allowing The Federal Sentencing Guidelines To Stay The Same In Light Of Gall, Kimbrough, And New Understandings Of Reasonableness Review, Jelani Jefferson Exum

Faculty Publications

(Excerpt)

In December 2007, through two decisions, the Supreme Court sought to clean up the confusion that it created just shy of three years earlier when it rendered the Federal Sentencing Guidelines advisory in United States v. Booker and called for circuit courts to begin reviewing sentences for "unreasonableness." In one of those December decisions, Gall v. United States, the Court clarified what it meant by reasonableness review and explained that such review had both a procedural and substantive component. In the other decision, Kimbrough v. United States, the Court gave more meaning to the substantive component, …

In Whose "Best Interests"? – An International And Comparative Assessment Of Us Rules On Sentencing Of Juveniles, Jelani Jefferson Exum, John W. Head

Faculty Publications

According to numerous sources, both at the international level and within the USA, legal standards governing the treatment of children (commonly defined as persons under 18 years old)—including their treatment at the hands of the judicial system—should reflect an assessment of "the best interests of the child". An explicit announcement of this principle at the international level appears in the Convention on the Rights of the Child ("CRC"), which nearly all countries in the world have adopted. Article 37 of the CRC elaborates on the "best interests" principle, by prescribing six key standards national juvenile justice systems are to follow …

Does Doj's Privilege Waiver Policy Threaten The Rationales Underlying The Attorney-Client Privilege And Work Product Doctrine? A Preliminary "No", Julie R. O'Sullivan

Georgetown Law Faculty Publications and Other Works

According to white-collar defense practitioners, the demise of the corporate attorney-client privilege and work product doctrine is imminent. While a variety of assaults have been identified, by far the most oft-cited culprit is the U.S. Department of Justice (DOJ), whose prosecutors, it is charged, have routinely insisted that corporations waive these protections to secure cooperation credit and declination of criminal action against the corporate actor and/or consideration at sentencing. DOJ has, by and large, vigorously defended its policies in this regard. Congress now threatens to inject itself into the debate: legislation entitled the "Attorney-Client Privilege Protection Act" has been introduced …

Killing Them Softly: Meditations On A Painful Punishment Of Death, Robert I. Blecker

Articles & Chapters

This brief essay argues that any attempt by the U.S. Supreme Court and others to establish a painless punishment, especially lethal injection, fails logically and morally.

From the beginning, by definition, etymologically and existentially, “punishment” and “pain” have been inseparably connected. Those who advocate ‘painless punishment’ call for contradiction. Whether looking to the future (utilitarians) or the past (retributivists), we once clearly understood and embraced the inseparable connection between punishment and pain. Gradually, however, punishment has morphed into something which denies its own nature, culminating in today's move toward a massive dose of anesthetic as the ultimate punishment - as …

Victims And The Significance Of Causing Harm, Guyora Binder

Journal Articles

Many criminal law theorists find the punishment of harm puzzling. They argue that acts should be evaluated only on the basis of the risks they create and the actors' awareness of those risks; that punishing results violates both desert and utility. This article explains punishment of harm on the basis of political theory rather than moral philosophy. Punishing harm helps legitimize the rule of law by vindicating victims. A rule of law state precludes cycles of organized retaliatory violence by asserting a monopoly on retaliatory force, thereby depriving individuals and groups of the option of securing their own dignity. We …

A New Look At Neo-Liberal Economic Policies And The Criminalization Of Undocumented Migration, Teresa A. Miller

Journal Articles

This paper situates the current “crisis” surrounding the arrival and continued presence of undocumented immigrants in the United States within penological trends that have taken root in American law over the past thirty years. It positions the shift from more benevolent to the increasingly harsh legal treatment of undocumented immigrants as the continuation of a succession of legal reforms criminalizing immigrants, and governing immigration through crime. By charting the increasing salience of crime in public perceptions of undocumented immigrants, and comparing the immediately preceding criminal stigmatization of so-called “criminal aliens”, this paper exposes current severity toward undocumented immigrants as consistent …

Punishing Family Status , Jennifer M. Collins, Ethan J. Leib, Dan Markel

Faculty Scholarship

This Article focuses upon two basic but under-explored questions: when does, and when should, the state use the criminal justice apparatus to burden individuals on account of their familial status? We address the first question in Part I by revealing a variety of laws permeating the criminal justice system that together form a string of family ties burdens, laws that impose punishment upon individuals on account of their familial status. The seven burdens we train our attention upon are omissions liability for failure to rescue, parental responsibility laws, incest, bigamy, adultery, nonpayment of child support, and nonpayment of parental support. …

Should Being A Victim Of A Crime Be A Defense To The Same Or A Different Crime?, Russell Christopher

Articles, Chapters in Books and Other Contributions to Scholarly Works

No abstract provided.

Prosecuting Aggression, Noah Weisbord

Faculty Publications

The Assembly of States Parties to the International Criminal Court will soon have its first opportunity to revise the Rome Statute and activate the latent crime of aggression, which awaits a definition of its elements and conditions for the exercise of jurisdiction. The working group charged with drafting a provision is scheduled to complete its task by 2008 or 2009, one year before the International Criminal Court’s first review conference.

Beginning with a history of the crime meant to put the current negotiations in the context of past initiatives, this article sets out the status of the negotiations and begins …

Jail For Juvenile Child Pornographers?: A Reply To Professor Leary, Stephen F. Smith

Journal Articles

Even though Professor Leary and I are united in the goal of protecting children against sexual exploitation, we part company on the proper societal response to the problem of self-produced child pornography. In my view, children who produce and distribute pornographic images of themselves ordinarily should not be regarded as proper objects of punishment. In this context, child protective services, backed up if necessary by the threat of criminal prosecution, is a much more appropriate way of reforming minors and protecting them against the serious dangers to which they expose themselves by creating and distributing pornographic images of themselves. A …

Pretrial And Preventative Detention Of Suspected Terrorists: Options And Constraints Under International Law, Douglass Cassel

Journal Articles

This article analyzes the grounds, procedures and conditions required by International Human Rights Law and International Humanitarian Law for pretrial detention of suspected terrorists for purposes of criminal law enforcement, and for their preventive detention for security and intelligence purposes. Recognizing the difficulties in securing sufficient admissible evidence to prosecute terrorists within the tight time limits imposed by international law, the Article nonetheless suggests that indefinite detention, solely or primarily for purposes of intelligence interrogation, is probably not lawful under U.S. or international law. Preventive detention for security purposes, on the other hand, is generally permitted by international law, provided …

Initiating A New Constitutional Dialogue: The Increased Importance Under Aedpa Of Seeking Certiorari From Judgments Of State Courts, Giovanna Shay, Christopher Lasch

Faculty Scholarship

The Antiterrorism and Effective Death Penalty Act (AEDPA) contains a provision restricting federal courts from considering any authority other than holdings of the Supreme Court in determining whether to grant a state prisoner’s petition for habeas corpus. Through an empirical study of cert filings and cases decided by the Supreme Court, the Authors assess this provision’s impact on the development of federal constitutional criminal doctrine. Before AEDPA and other restrictions on federal habeas corpus, lower federal courts and state courts contributed to doctrinal development by engaging in a dialogue. This dialogue served to articulate the broad constitutional principles set forth …

Beyond Intention, Kimberly Kessler Ferzan

Cardozo Law Review

No abstract provided.

"It's Not World Peace, But ..." Restorative Justice: Analysis Of Recidivism Rates In Campbell Law School's Juvenile Justice Project, Jennifer L. Kerrigan

Campbell Law Review

This Comment explores victim-offender mediation and specifically the recidivism rates of the juveniles who participated in Campbell's Juvenile Justice Project (JJP). Part II gives a brief background on the different theories of justice and the move towards restorative justice. Part III explains how the JJP came to be and how it currently functions. Part IV outlines the methods used to determine the recidivism rates of the program. Part V displays the results of the study and illustrates the differences with charts. Part VI discusses the possible explanations for the differences in the recidivism rates. Part VII concludes with closing remarks …

Beyond Discretion: Prosecution, The Logic Of Sovereignty, And The Limits Of Law, Conor Clarke, Austin Sarat

Scholarship@WashULaw

Today it is widely recognized in both academic literature and the main-stream media that prosecutors have substantial discretion. Yet prosecutorial decisions involve, in our view, something more than a straightforward exercise of discretion. In this article we move from the language of discretion to that of sovereignty to describe prosecutorial power. In so doing we want to move from the language of administration to the language of power. Focusing on the decision not to prosecute, we argue that prosecutorial decisions participate in, and exemplify, the logic of sovereignty and its complex relationship to legality. By drawing on Carl Schmitt and …

Due Process For The Global Crime Era: A Proposal, Song Richardson

Scholarly Articles in Law Reviews & Journals

This article argues that the adjudication of transnational criminal cases in the United States raises troubling questions about the government's commitment to principled criminal process standards. Concern over global crime has resulted in a criminal process that inadequately protects fairness and legitimacy norms. Over 40 years ago, in his seminal work on the domestic criminal process, Herbert Packer described two models of criminal procedure: the crime control model and the due process model. The crime control model posits that the most important function of the criminal justice system is to suppress crime. The due process model focuses on the fallibility …

The Illusion Of Transformative Conflict Resolution: Mediating Domestic Violence In Nicaragua, Raquel Aldana, Leticia Saucedo

McGeorge School of Law Scholarly Articles

No abstract provided.

Retooling Law Enforcement To Investigate And Prosecute Entrenched Corruption: Key Criminal Procedure Reforms For Indonesia And Other Nations, Leslie Gielow Jacobs, Benjamin B. Wagner

McGeorge School of Law Scholarly Articles

No abstract provided.

Criminal Procedure In Perspective, Kit Kinports

Faculty Scholarship

This Article attempts to situate the Supreme Court's constitutional criminal procedure jurisprudence in the academic debates surrounding the reasonable person standard, in particular, the extent to which objective standards should incorporate a particular individual's subjective characteristics. Analyzing the Supreme Court's search and seizure and confessions opinions, I find that the Court shifts opportunistically from case to case between subjective and objective tests, and between whose point of view - the police officer's or the defendant's - it views as controlling. Moreover, these deviations cannot be explained either by the principles the Court claims underlie the various constitutional provisions at issue …

Strange Bedfellows, David M. Uhlmann

Articles

Environmental protection has not been a priority for the Bush administration, but, contrary to popular perception, criminal prosecution of companies and officials accused of breaking environmental laws has flourished.

In Memoriam: Francis A. Allen, Yale Kamisar

Articles

Francis A. Allen graced the law faculties of five universities in the course of a remarkable, forty-six-year teaching career. In that time, he established himself as one of the half-dozen greatest twentieth century American scholars of criminal law and criminal procedure.

Strict Liability And Negligent Rape: Or How I Learned To Start Worrying And Question The Criminal Justice System, Dini Rosenbaum

Cardozo Journal of Equal Rights & Social Justice

The note critiques strict liability and negligent rape standards, advocating for a more nuanced approach that prioritizes subjective fault and societal education to address the limitations of current rape laws. It emphasizes the need to align legal standards with the defendant's actual state of mind while addressing systemic barriers to justice, particularly in date rape cases. The analysis highlights the gap between legal reforms and their practical application, suggesting that education could be a more effective tool for prevention than relying solely on legal changes.

Reporting Sexual Assault Of Women In The Military, Jodie Friedman

Cardozo Journal of Equal Rights & Social Justice

The note examines the underreporting of sexual assaults in the military and the impact of policy changes aimed at addressing this issue. It highlights the challenges faced by victims, including fears of retaliation and the lack of confidentiality, and evaluates the effectiveness of the 2005 restricted reporting policy. The analysis suggests that while progress has been made, systemic issues persist, and further reforms are needed to protect victims' rights and ensure justice.

Jury Trial And Adversary Procedure In Russia: Reform Of Soviet Inquisitorial Procedure Or Democratic Window-Dressing?, Stephen C. Thaman

All Faculty Scholarship

A new adversary system of jury trial was introduced in 1993-1994, and the rights to jury trial, adversary procedure, the presumption of innocence, and the mandatory exclusion of illegally gathered evidence were incorporated into the new Constitution of the Russian Federation in December of 1993. The new Criminal Procedure Code of the Russian Federation, passed in December 2001, led to the extension of jury trial to the entire country with the exception of the Republic of Chechnia in 2003-2004.

This chapter explores the extent to which the Russian jury system and adversary procedure have humanized criminal procedure, and concludes that …

The Empirics Of Prison Growth: A Critical Review And Path Forward, John F. Pfaff

Faculty Scholarship

A growing empirical literature has sought to explain the forces behind the significant expansion of the U.S. prison population over the past thirty years. Unfortunately, the studies to date have suffered from important methodological, conceptual, and definitional problems that have significantly curtailed their ability to identify causal effects. In this Article, I examine several of the central limitations and discuss remedies. I start by reviewing the theories that investigators have sought to test. I then discuss the studies' empirical defects, such as failing to account for endogenous relationships, overlooking the risk of model dependency, ignoring complex dynamic relationships, using variables …

Arbitrary Detention: Whither - Or Wither? - Section 9, Steve Coughlan

Articles, Book Chapters, & Popular Press

It is a remarkable fact that more than 25 years after the Canadian Charter of Rights and Freedoms came into effect, we still have no section 9 jurisprudence. It is not that there have been no decisions at all concerning the right not to be arbitrarily detained, of course, but taken in total they do not come anywhere near setting out an analytical framework. This stands in contrast to most other legal rights in the Charter. Section 7 jurisprudence has established the two-step approach to take in assessing claims under that section, including a three-step test for determining whether a …