Criminal Law Commons^™

People V. Lopez, Geoffrey Goell

NYLS Law Review

No abstract provided.

Defending And Despairing: The Agony Of Juvenile Defense, Abbe Smith

Georgetown Law Faculty Publications and Other Works

I believe there is no more important work than defending kids, especially those accused of serious crimes. The consequences of juvenile crime are increasingly severe, whether kids remain in the juvenile system or are prosecuted as adults. We lock up too many people in this country, many of whom are children. Surely, at the start of the twenty-first century - given our knowledge about the causes of juvenile delinquency and crime - we can do more than put troubled kids in cages. So, why not work with young offenders who are on their way to becoming adult clients, to try …

It Takes A Lawyer To Raise A Child?: Allocating Responsibilities Among Parents, Children, And Lawyers In Delinquency Cases, Kristin N. Henning

Georgetown Law Faculty Publications and Other Works

This Article considers whether, and to what extent, children do or should look to parents for guidance in matters of juvenile delinquency. To this end, I draw insight from theories of adolescent development, rules of professional ethics, and principles of constitutional law and justice. In Part I, I identify opportunities for support and collaboration between children and parents in the juvenile justice system and then consider the potential for conflict in these families. In Part II, I propose six strategies for effective lawyering on behalf of children and parents in juvenile court. Given the complexities of the issues, I recognize …

The Perennial Conflict Between International Criminal Justice And Realpolitik, M. Bassiouni

College of Law Faculty

No abstract provided.

The Perennial Conflict Between International Criminal Justice And Realpolitik, M. Bassiouni

College of Law Faculty

No abstract provided.

The Perennial Conflict Between International Criminal Justice And Realpolitik, M. Bassiouni

College of Law Faculty

No abstract provided.

Application Of The Insanity Defense To Postpartum Disorder-Driven Infanticide In The United States: A Look Toward The Enactment Of An Infanticide Act, April J. Walker

University of Maryland Law Journal of Race, Religion, Gender and Class

No abstract provided.

Criminalizing Marital Rape: A Comparison Of Judicial And Legislative Approaches, Theresa Fus

Vanderbilt Journal of Transnational Law

Even though many countries still permit husbands to rape their wives with little or no consequence, there is a growing trend that marital exemption is unjust and has no place in a civilized society. Recognition of the inappropriateness of marital exemption is, however, only the first step towards its elimination. To effectively equalize treatment of marital and non-marital rape, legislatures and judiciaries must take action. Several countries have already been host to the abolition of marital immunity, but their approaches may not be the most effective. This Note examines the experiences of England and Canada as examples of judicial and …

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

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

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. …

The Electronic Recording Of Criminal Interrogations, Roberto Iraola

University of Richmond Law Review

Should law enforcement officers be required to record, by video or audiotape, custodial interrogations of suspects? If so, how much, the entire interrogation or just the confession? Many prosecutors and police departments maintain that a recording requirement will hamper law enforcement and discourage suspects from talking. Proponents of this measure argue that the recording of interrogations protects against false confessions, augments the effective administration of justice, and serves to improve the relationship between the public and the police.

This article generally examines the developing case law on this question. Because of the incriminating nature of confessions, the article, by way …

Teaching Reflective Lawyering In A Small Case Litigation Clinic: A Love Letter To My Clinic Papers Presented At The Ucla/Ials Conference On Enriching Clinical Education, Ian Weinstein

Faculty Scholarship

This article describes a live client, small case, teaching and learning centered, criminal defense clinic set in a high volume urban court. It offers concrete suggestions about how clinical educators can help students develop analytic and technical skills. The clinic model is conceived in three phases: giving students the opportunity to develop a contextualized understanding of the client; guiding students through strategic analysis and planning; and focusing students' litigation strategies on executing their tactical vision for their client. The article argues that this clinical setting structures the students' experiences so that they develop a complex and deeply moral lawyerly problem …

Continued Vitality Of Structured Sentencing Following Blakely: The Effectiveness Of Voluntary Guidelines, The , John F. Pfaff

Faculty Scholarship

In two recent opinions, Blakely v. Washington and United States v. Booker, the U.S. Supreme Court effectively invalidated the binding nature of sentencing guidelines used by many states and the federal government over the past thirty years. Not surprisingly, numerous commentators have asserted that Blakely and Booker profoundly altered the nature of sentencing in the United States. But these claims have been made without any meaningful empirical consideration of whether viable alternatives exist. This Article fills that gap. It explores the extent to which voluntary, nonbinding criminal sentencing guidelines influence the sentencing behavior of state trial judges. In particular, it …

Holding Restorative Justice Accountable, Zvi D. Gabbay

Cardozo Journal of Conflict Resolution

Part I of this Article provides a better understanding of the restorative justice theory and its practical expressions. It describes the values and objectives upon which restorative justice is premised and introduces the three most common restorative justice practices: victim-offender mediation, group conferencing and circles. Part II introduces the democratic experimentalism model and demonstrates its compatibility with the restorative justice theory. Part III introduces four restorative justice programs currently operating in the United States, two operated by courts and two by prosecuting agencies. Part IV demonstrates the inadequacy of the evaluation mechanisms currently employed by these programs and emphasizes the …

Mediating Cases Involving Domestic Violence: Solution Or Setback?, Aimee Davis

Cardozo Journal of Conflict Resolution

This Note will first explore the psychological and social aspects of domestic violence. It will then examine the appropriateness of mediation for such cases, exploring viewpoints on the topic. Lastly, the Note will propose a standard to guide cases involving domestic violence. Although the victim should always have the final word on whether to mediate, a judge, psychologist, and mediator should collaborate and make a united recommendation as to how they suggest the victim should proceed. This will allow the victim to make a thoughtful and individualized assessment of her situation.

The Road Less Traveled: Using Adr To Help Reform Firsttime Juvenile Offenders, Maggie Gertz

Cardozo Journal of Conflict Resolution

Section I of this Note details the history of the juvenile justice system, making specific reference to the various developments in juvenile justice policy, concluding with a discussion of the conflicts involved in juvenile offending. Section II examines ADR techniques that have been used in the juvenile justice field, with some success, as an alternative to further prosecution, incarceration or other punishment, highlighting Victim-Offender Mediation and Family Group Conferencing. In Section III, I analyze why ADR techniques are an ideal solution to the ills of the current system, and how these methods meet many of the goals of the traditional …

Vitality Of Voluntary Guidelines In The Wake Of Blakely V. Washington: An Empirical Assessment, The Articles On Guideline Operation Issues, John F. Pfaff

Faculty Scholarship

This Article explores the extent to which voluntary, non-binding criminal sentencing guidelines influence the sentencing behavior of state trial judges. In particular, it focuses on the ability of such guidelines to encourage judges to sentence consistently and to avoid improperly taking into account a defendant's race or sex. It also compares such guidelines to more-binding presumptive guidelines, which were recently found constitutionally impermissible in Blakely v. Washington. In general, the results indicate that voluntary guidelines are able to accomplish much, though not all, that presumptive guidelines were able to, especially with respect to sentence variation. For example, voluntary guidelines appear …

Barry Scheck Lectures On Wrongful Convictions, Barry Scheck

Articles

The article discusses the systemic issues leading to wrongful convictions, emphasizing the role of mistaken eyewitness identification and flawed forensic science. It highlights the importance of postconviction DNA exonerations in revealing these injustices and advocates for reforms to improve the criminal justice system.

The Under-Appreciated Value Of Advisory Guidelines, Erica J. Hashimoto

Scholarly Works

The Sentencing Reform Act of 1984 provided that the trial court "shall impose a sentence of the kind, and within the range" set forth in the United States Sentencing Guidelines ("Guidelines") issued by the Sentencing Commission. With that one phrase, the Act created a system of guidelines that was binding upon judges, rather than simply advisory. Concerns about excessive disparity and undue leniency in sentencing unquestionably drove the political coalition that passed the Act. It is not clear, however, why Congress believed that mandatory-as opposed to advisory-guidelines were necessary to address those concerns. With the benefit of hindsight, it is …

Behavioural Genetics In Criminal Cases: Past, Present And Future, Nita A. Farahany, William Bernet

Faculty Scholarship

Researchers studying human behavioral genetics have made significant scientific progress in enhancing our understanding of the relative contributions of genetics and the environment in observed variations in human behavior. Quickly outpacing the advances in the science are its applications in the criminal justice system. Already, human behavioral genetics research has been introduced in the U.S. criminal justice system, and its use will only become more prevalent. This essay discusses the recent historical use of behavioral genetics in criminal cases, recent advances in two gene variants of particular interest in the criminal law, MAOA and SLC6A4, the recent expert testimony on …

When Criminal And Tort Law Incentives Run Into Tight Budgets And Regulatory Discretion, William G. Childs

Faculty Scholarship

Eight-year-old Greyson Yoe was electrocuted while waiting to get on the "Scooters" bumper car ride at the Lake County Fair in northeastern Ohio. The failure to ground the ride structure and damage to a light fixture on the ride caused his death. The day before the electrocution, two inspectors from the Ohio Department of Agriculture (ODA) inspected the ride and passed it as "safe to operate." That inspection was superficial and grossly inadequate, and the completed inspection form had serious misrepresentations. Indeed, the inspectors later admitted that they never reviewed the key electrical items that they checked off on the …

You Drink, You Drive, You Lose: Or Do You?, Tina Wescott Cafaro

Faculty Scholarship

This Article explores different ways to effectively discourage the crime of alcohol impaired driving. Part I analyzes the trend of utilizing preventive educational measures to counteract societal acceptance of this crime and the shortcomings of relying exclusively on this measure. Part II discusses OUI prevention based on deterrence and the use of stricter penalties, such as mandatory jail sentences, to stop alcohol impaired drivers. This section explores whether the trend of increasing the severity of the punishment for OUI offenses is effective in stopping the crime. This section also discusses the shortcomings of OUI legislation that make deterrence of OUI …

Public Humiliation As A Mitigator In Criminal Sentencing, Barbara Benoliel

Walden Dissertations and Doctoral Studies

This study examined the relationship between the public humiliation and shaming of offenders in the sentencing portion of a criminal trial and the subsequent severity of the sentence the offender receives. Judicial moral shaming of offenders is returning to popularity in the courts, influencing the final sentence outcome as an under-identified mitigator, that substitutes for judges’ other punitive sanctions. Support for this shaming is found in Heider’s attribution theory and in Homans’ theory of social exchange; however Braithwaite found this form of shaming is overly punitive and ineffective. This four phase study used a sequential, mixed method, exploratory research design. …

Sentencing Guideline Law And Practice In A Post-Booker World: Introduction, Michael Vitiello

McGeorge School of Law Scholarly Articles

No abstract provided.

Innocent Of A Capital Crime: Parallels Between Innocence Of A Crime And Innocence Of The Death Penalty, Linda Carter

McGeorge School of Law Scholarly Articles

No abstract provided.

Gender Equality, Social Values And Provocaion Law In The United States, Canada And Australia, Caroline Forrell

American University Journal of Gender, Social Policy & the Law

No abstract provided.

Reconceptualising Female Trafficking: The Inhuman Trade In Women, Alison Cole

Cardozo Journal of Equal Rights & Social Justice

The article argues that female trafficking must be reconceptualized under international criminal law as a crime against humanity to establish a uniform legal framework for combating this global issue. It critiques existing international approaches for lacking coherence and enforcement, emphasizing the need for a clear definition and standardized measures to address the severity of trafficking. The UN Trafficking Protocol, while authoritative, leaves significant discretion to states, resulting in varied domestic policies that hinder effective international cooperation. By classifying female trafficking as a crime against humanity, the article proposes a more robust legal basis for universal jurisdiction and individual liability, aligning …

Who's Afraid Of The Big Bad Wolf? The International Criminal Court As A Weapon Of Asymmetric Warfare, W. C. Austin

Vanderbilt Journal of Transnational Law

The United States is engaged in a war on terror against enemies who wage "asymmetric war" through terrorism, media manipulation, and "law-fare"---exploiting judicial processes to achieve political or military objectives.

This Article explores whether the fledgling International Criminal Court (ICC) could eventually be exploited by these groups as a tool of asymmetric "law-fare." It briefly traces the history of the ICC and recounts why the United States opposes the Court. Examining the methods of asymmetric war, the Authors then explore whether the ICC could be exploited by future asymmetric warriors.

The Authors describe three asymmetric methods that could be used …

Improving Criminal Jury Decision Making After The Blakely Revolution, J. J. Prescott, Sonja B. Starr

Articles

The shift in sentencing fact-finding responsibility triggered in many states by Blakely v. Washington may dramatically change the complexity and type of questions that juries will be required to answer. Among the most important challenges confronting legislatures now debating the future of their sentencing regimes is whether juries are prepared to handle this new responsibility effectively - and, if not, what can be done about it. Yet neither scholars addressing the impact of Blakely nor advocates of jury reform have seriously explored these questions. Nonetheless, a number of limitations on juror decision making seriously threaten the accuracy of verdicts in …