Criminal Law Commons^™

Anti-Racketeering Legislation In America, Craig M. Bradley

Articles by Maurer Faculty

No abstract provided.

The Reasonable Policeman: Police Intent In Criminal Procedure, Craig M. Bradley

Articles by Maurer Faculty

No abstract provided.

Banishing Acts: How Far May States Go To Keep Convicted Sex Offenders Away From Children?, Bret R. Hobson

Georgia Law Review

Few legislative goals are more commendable than states' attempts to prevent child sexual abuse. Given the difficult nature of this problem, some judicial deference to legislative efforts is appropriate. Politicians, however, should not receive carte blanche to enact reactionary, overinclusive statutes of questionable efficacy. When laws such as residency restrictions target all convicted sex offenders who have already paid their debt to society, courts should closely examine whether such laws violate substantive due process and the Ex Post Facto Clause. Despite the difficulty in articulating a discrete fundamental right that is infringed by residency restrictions,these laws restrain the liberty of …

Crime And Punishment In Taxation: Deceit, Deterrence, And The Self-Adjusting Penalty, Alex Raskolnikov

Faculty Scholarship

Avoidance and evasion continue to frustrate the government's efforts to collect much-needed tax revenues. This Article articulates one of the reasons for this lack of success and proposes a new type of penalty that would strengthen tax enforcement while improving efficiency. Economic analysis of deterrence suggests that rational taxpayers choose avoidance and evasion strategies based on expected rather than nominal sanctions. I argue that many taxpayers do just that. Because the probability of detection varies dramatically among different items on a tax return while nominal penalties do not take the likelihood of detection into account, expected penalties for inconspicuous noncompliance …

Adolescence And The Regulation Of Youth Crime, Elizabeth S. Scott

Faculty Scholarship

I am delighted to be a part of this Symposium on Law and Adolescence. My talk today is about adolescent development and juvenile justice policy. Specifically, I will focus on why a legal regime that is grounded in scientific knowledge about adolescence and the role of criminal activity during this developmental period is better for young offenders and for society than the contemporary policy, which often pays little attention to differences between adolescents and adults.

My talk is based on a book on juvenile justice policy I am currently writing with Larry Steinberg, a developmental psychologist who is a leading …

Capital Punishment And Capital Murder: Market Share And The Deterrent Effects Of The Death Penalty, Jeffrey Fagan, Franklin Zimring, Amanda Geller

Faculty Scholarship

The modem debate on deterrence and capital punishment, now in its fourth decade, was launched by two closely timed events. The first was the 1976 United States Supreme Court decision in Gregg v. Georgia, which restored capital punishment after its brief constitutional ban following Furman v. Georgia in 1972. In 1975, Professor Isaac Ehrlich published an influential article saying that during the 1950s and 1960s, each execution averted eight murders. Although Ehrlich's article was a highly technical study prepared for an audience of economists, its influence went well beyond the economics profession. Ehrlich's work was cited favorably in Gregg …

Death And Deterrence Redux: Science, Law And Causal Reasoning On Capital Punishment, Jeffrey Fagan

Faculty Scholarship

The essay shows that the new deterrence studies are fraught with numerous technical and conceptual errors: inappropriate methods of statistical analysis, failures to consider several relevant factors that drive murder rates such as drug epidemics, missing data on key variables in key states, the tyranny of a few outlier states and years, weak to non-existent tests of concurrent effects of incarceration, statistical confounding of murder rates with death sentences, failure to consider the general performance of the criminal justice system, artifactual results from truncated time frames, and the absence of any direct test of the components of contemporary theoretical constructions …

Social Contagion Of Violence, Jeffrey Fagan, Deanna L. Wilkinson, Garth Davies

Faculty Scholarship

Since 1968, violence and other crimes in New York City have followed a pattern of recurring epidemics. There have been three consecutive and contiguous cycles characterized by sharp increases in homicides and assaults to an elevated rate followed by equally steep declines to levels near the previous starting point. The most recent epidemic, from 1985-96, had the sharpest rise and steepest decline of the three epidemics. Popular explanations of the current epidemic fail to account for both the rise and fall of the decline, or for the repetitive pattern of these epidemics. In this article, we use public health data …

Embracing Chance: Post-Modern Meditations On Punishment, Bernard E. Harcourt

Faculty Scholarship

Since the modern era, the discourse of punishment has cycled through three sets of questions. The first, born of the Enlightenment itself, asked: On what ground does the sovereign have the right to punish? Nietzsche most forcefully, but others as well, argued that the question itself begged its own answer. The right to punish, they suggested, is what defines sovereignty, and as such, can never serve to limit sovereign power. With the birth of the social sciences, this skepticism gave rise to a second set of questions: What then is the true function of punishment? What is it that we …

Public Attitudes About The Culpability And Punishment Of Young Offenders, Elizabeth S. Scott, N. Dickon Reppucci, Jill Antonishak, Jennifer T. Degennaro

Faculty Scholarship

Conventional wisdom holds that the public supports harsh punishment of juvenile offenders, and politicians often argue that the public demands tough policies. But public opinion is usually gauged through simplistic polls, often conducted in the wake of highly publicized violent crimes by juveniles. This study seeks to probe public opinion about the culpability of young offenders as compared to adult counterparts through more nuanced and comprehensive measures in a neutral setting (i.e. not in response to a high profile crime or during a political campaign when the media focuses on the issue). The opinions of 788 community adults were individually …

Muslim Profiles Post-9/11: Is Racial Profiling An Effective Counterterrorist Measure And Does It Violate The Right To Be Free From Discrimination?, Bernard E. Harcourt

Faculty Scholarship

Racial profiling as a defensive counterterrorism measure necessarily implicates a rights trade-off: if effective, racial profiling limits the right of young Muslim men to be free from discrimination in order to promote the security and well-being of others. Proponents of racial profiling argue that it is based on simple statistical fact and represents just smart law enforcement. Opponents of racial profiling, like New York City police commissioner Raymond Kelly, say that it is dangerous and just nuts.

As a theoretical matter, both sides are partly right. Racial profiling in the context of counterterrorism measures may increase the detection of terrorist …

Rational Choice And Developmental Influences On Recidivism Among Adolescent Felony Offenders, Jeffrey Fagan, Alex R. Piquero

Faculty Scholarship

Recent law and scholarship has claimed that the developmental limitations of adolescents affect their capacity for control and decision making with respect to crime, diminishing their culpability and reducing their exposure to punishment. Social science has focused on two concurrent adolescent developmental influence: the internalization of legal rules and norms that regulate social and antisocial behaviors, and the development of rational thought to frame behavioral choices and decisions. The interaction of these two developmental processes, and the identification of one domain of socialization and development as the primary source of motivation or restraint in adolescence, is the focus of this …

Transnational Criminal Law And Procedure: An Introduction, Sadiq Reza

Faculty Scholarship

What is “transnational” criminal law? One possibility is foreign criminal law, meaning the scope and substance of what is deemed criminal behavior in other lands and the theories that ostensibly justify punishing for such behavior, indeed deeming it criminal in the first place. Another is foreign criminal procedure, the “how” of foreign criminal law’s “what” and “why”: the rules and practices of investigating crime, prosecuting suspected criminals, and adjudicating criminal cases in other lands or systems. More common meanings, judging from articles in U.S. law reviews, are comparative criminal law and comparative criminal procedure, though these might differ from their …

Indecent Standards: The Case Of U.S. Versus Weldon Angelos, Eva Nilsen

Faculty Scholarship

In today's highly punitive culture, perhaps Weldon Angelos' fifty-five-year sentence does not seem unusual. He's a 25-year-old man who was convicted in December 2003 of selling marijuana, possessing firearms while drug dealing, and money laundering. ³ The facts proven at trial are that on three occasions in June and July, 2002, Angelos sold eight one-ounce bags of marijuana for $350 each to a government informant. ⁴ The purchaser testified that a firearm was visible during two of these drug sales.⁵ Police seized another gun from Angelos' home five months later pursuant to a warrant.⁶ At no time was …

Judicial Misconduct In Criminal Cases: It’S Not Just The Counsel Who May Be Ineffective And Unprofessional, Richard Klein

Scholarly Works

No abstract provided.

Death Penalty And Right To Counsel Decisions In The October 2005 Term, Richard Klein

Scholarly Works

No abstract provided.

Sentencing For The 'Crime Of Crimes': The Evolving 'Common Law' Of Sentencing Of The International Criminal Tribunal For Rwanda, Robert D. Sloane

Faculty Scholarship

Absent much prescriptive guidance in its Statute or other positive law, the International Criminal Tribunal for Rwanda (ICTR) has been developing, in effect, a 'common law' of sentencing for the most serious international crimes: genocide and crimes against humanity. While it remains, as the Appeals Chamber has said, premature to speak of an emerging 'penal regime', and the coherence in sentencing practice that this denotes, this comment offers some preliminary reflections on the substantive law and process of sentencing as it has evolved through ICTR practice. Above all, I argue, sentencing must, but has not yet, become an integral part …

Bringing Families In: Recommendations Of The Incarceration, Reentry And Family Roundtables, Ann Cammett, Johnna Christian, Nancy Fisherman, Lori Scott-Pickens

Scholarly Works

Building on the findings of the New Jersey Reentry Roundtable and a growing concern around the state about how to improve outcomes for the more than 70,000 individuals expected to return home from prison over the next five years, the roundtable examined the complex role that families – broadly defined – play in the lives of prisoners during incarceration and after their release. This document presents a set of recommendations emerging directly from roundtable sessions and provides a road map for individual and collaborative efforts accepted by a range of key players in New Jersey, including government officials, community and …

The Supreme Court’S Analysis Of Issues Raised By Death Penalty Litigants In The Court's 2004 Term, Richard Klein

Scholarly Works

No abstract provided.

"Reasonably Predictable:" The Reluctance To Embrace Judicial Discretion For Substantial Assistance Procedures, India Geronimo Thusi

Articles by Maurer Faculty

This Comment focuses on the nuances of post-Booker cooperation departures and sentence variances. Section 5K1.1 of the Guidelines governs the provision of cooperation, or substantial assistance, departures. This provision was the primary method for defendants to receive cooperation departures prior to Booker. The section 5K1.1 provision allowed substantial assistance departures where the prosecution actually benefited from the defendant’s cooperation.

First, Part I.A of this Comment will provide an overview of the original goals of the Sentencing Commission and the section 5K1.1 substantial assistance provision. Part I.B of the Comment summarizes United States v. Booker and its impact on cooperation departures. …

The Legality Of The Nsa Wiretapping Program, Evan Tsen Lee

Faculty Scholarship

No abstract provided.

Aba Files Amicus Brief In Actual Innocence Case, Rory K. Little

Faculty Scholarship

No abstract provided.

Summary Of Williams V. State, 121 Nev. Adv. Op. 90, Jacqueline A. Gilbert

Nevada Supreme Court Summaries

A jury, selected from the third venire, convicted Gary Jerome Williams of battery with use of a deadly weapon causing substantial bodily harm on Robin Swope. On June 22, 2003, Williams and the victim (Robin Swope) engaged in an altercation after Swope saw Williams speaking to Swope’s thirteen-year-old daughter. At trial, most details of the altercation were highly disputed including, who was the initial aggressor, who produced a knife, and whether Swope used highly inflammatory language. In 1985, when he was seventeen, the State of Arkansas convicted Williams of aggravated battery, sentencing him to fifteen years confinement. The Nevada pre-sentencing …

The Problems With Blaming, Theodore Y. Blumoff

ExpressO

This work examines the social practice of blaming, beginning with a prominent view of the moral philosophy of blaming, the semantics of character that support this (and related) views, and the social and cultural biases we bring to the process of attributing blame. Our penchant for blaming is too often manifest in a hyper-willingness to attribute wrongdoing solely to the character of the wrongdoer, often overlooking the salience of the varied situations in which the wrongdoer finds himself. I synthesize the wealth of data, mostly from social psychology, showing that blaming actualizes our own dispositions for over-emphasizing the actor’s wicked …

Summary Of Bolden V. State, 121 Nev. Adv. Op. 86, Kelly Dove

Nevada Supreme Court Summaries

No abstract provided.

Reforming The Appellate Process For Pennsylvania Capital Punishment, Paul R. Teichert

ExpressO

The death penalty has long been a staple of governmental punishment. It has been incorporated in the Hammurabi Code of ancient Babylon on down to the current laws of many American States. In early America, capital punishment, exercised at the local level, was ubiquitous and widely accepted. Pennsylvania lists itself among the states currently employing the death penalty. The death penalty in Pennsylvania began in the late 1600’s when the first colonists carried out public hangings as a punishment for various crimes. The public nature of the punishment, initially, was intended to deter community members from committing the same crimes. …

Quantifying Reasonable Doubt: A Proposed Solution To An Equal Protection Problem, Harry D. Saunders

ExpressO

In this article we present the case that the Reasonable Doubt standard is in urgent need of repair. Our research reveals that a previously-recognized phenomenon arising from vagueness of the standard is more consequential than thus far realized and creates a serious equal protection problem. We show that the only legally feasible solution to this problem is to quantify the definition of the standard. While others have examined quantified standards, we make a direct case for it and overcome previous objections to it by offering a way to make it practical and workable.

The solution we envision will require new …

Azbarga V. State Of Israel, Elyakim Rubinstein

Translated Opinions

This is an appeal to a single Justice of a decision of the Tel-Aviv-Jaffa District Court, in which the appellant’s application to be allowed out of house arrest, on a daily basis at fixed times, in order to participate in daily prayers at the mosque of the town of Qalansuwa, was denied. Justice Rubenstein allowed the appeal in part, allowing the appellant to go to the nearest mosque to pray once a week and, after three months without incident, to go to the mosque once a day.

Reinvigorating First Year Criminal Law: Integrating Mental Disability Issues Into The Criminal Law Course, Linda C. Fentiman

ExpressO

This article explores how mental disability issues can be incorporated into a traditional criminal law class, in order to enrich student understanding of both mental disability law and criminal law doctrine. The intersection of mental disability with the doctrinal aspects of criminal law can be broken into five major categories: 1) the justifications for punishment; 2) the definition of crime in general, e.g., the requirements of a voluntary act, mens rea, and causation; 3) the definition of particular crimes, such as murder, manslaughter, rape, and burglary; 4) defenses to crime, including mistake of law and of fact, as well as …

Model Of Time-Inconsistent Misconduct: The Case Of Lawyer Misconduct, Manuel A. Utset

Scholarly Publications

No abstract provided.