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Full-Text Articles in Criminal Law

When Prosecutors Control Criminal Court Dockets: Dispatches On History And Policy From A Land Time Forgot, Andrew Siegel Jan 2005

When Prosecutors Control Criminal Court Dockets: Dispatches On History And Policy From A Land Time Forgot, Andrew Siegel

Faculty Articles

The decision as to who has the authority to bring a matter up for resolution before a criminal court is one of the most basic decisions a system of criminal adjudication must make. Despite - or perhaps because of - the elemental nature of this structural matter, historians and scholars of criminal procedure have thus far offered a startling paucity of evidence as to the history and policy consequences of different docket control regimes. This article offers the first comprehensive examination of this issue, rescuing the history of criminal court calendar control from the dustbin of history and grappling in …

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An Exceptional Case: How Washington Should Amend Its Procedure For Imposing An Exceptional Sentence In Response To Blakely V. Washington, Jason Amala, Jason Laurine Jan 2005

An Exceptional Case: How Washington Should Amend Its Procedure For Imposing An Exceptional Sentence In Response To Blakely V. Washington, Jason Amala, Jason Laurine

Seattle University Law Review

This article reviews the Blakely decision and the Washington Legislature's response in S.B. 5477. Part II discusses the problem that Blakely created for Washington's sentencing guidelines system. Part III analyzes the judicial advisory and bifurcated trial proposals and explains why Washington wisely adopted the bifurcated trial approach. Part IV identifies key issues that are raised by using a bifurcated trial and analyzes how S.B. 5477 addresses, or fails to address, those issues. Finally, Part V concludes by suggesting that the legislature should have provided for the following in its bill responding to the Blakely decision: a provision allowing bifurcation for …

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Symposium: "Every Shut Eye, Ain't Sleep": Exploring The Impact Of Crack Cocaine Sentencing And The Illusion Of Reproductive Rights For Black Women From A Critical Race Feminist Perspective , Deleso Alford Washington Jan 2005

Symposium: "Every Shut Eye, Ain't Sleep": Exploring The Impact Of Crack Cocaine Sentencing And The Illusion Of Reproductive Rights For Black Women From A Critical Race Feminist Perspective , Deleso Alford Washington

American University Journal of Gender, Social Policy & the Law

No abstract provided.

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Roper V. Simmons, Jennifer Eswari Borra Jan 2005

Roper V. Simmons, Jennifer Eswari Borra

American University Journal of Gender, Social Policy & the Law

No abstract provided.

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The Effectiveness Of Juvenile Correctional Facilities: Public Versus Private Management, Patrick J. Bayer, David Pozen Jan 2005

The Effectiveness Of Juvenile Correctional Facilities: Public Versus Private Management, Patrick J. Bayer, David Pozen

Faculty Scholarship

This paper uses data on juvenile offenders released from correctional facilities in Florida to explore the effects of facility management type (private for-profit, private nonprofit, public state-operated, and public county-operated) on recidivism outcomes and costs. The data provide detailed information on individual characteristics, criminal and correctional histories, judge-assigned restrictiveness levels, and home zip codes — allowing us to control for the nonrandom assignment of individuals to facilities far better than any previous study. Relative to all other management types, for-profit management leads to a statistically significant increase in recidivism, but relative to nonprofit and state-operated facilities, for-profit facilities operate at …

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Seeing Crime And Punishment Through A Sociological Lens: Contributions, Practices, And The Future, Calvin Morill, John Hagan, Bernard E. Harcourt, Tracey L. Meares Jan 2005

Seeing Crime And Punishment Through A Sociological Lens: Contributions, Practices, And The Future, Calvin Morill, John Hagan, Bernard E. Harcourt, Tracey L. Meares

Faculty Scholarship

There is a rich intellectual history to the sociological study of crime and punishment that encompasses multiple and interrelated traditions. Some of these traditions trace their roots to the European social theorists of the nineteenth century, particularly Emile Durkheim, Max Weber, and Karl Marx. Although only Durkheim and Weber systematically studied law (and only Durkheim actually studied punishment), all three social theorists facilitated the development of sociological research and theory on crime and punishment. Durkheim's Suicide: A Study in Sociology for example, investigated the relationship between social integration and suicide rates, which, in turn, provided a model of inquiry for …

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Apprendi, Blakely And Federalism, Peter B. Rutledge Jan 2005

Apprendi, Blakely And Federalism, Peter B. Rutledge

Scholarly Works

The Clark Y. Gunderson Lecture is a memorial to a man who devoted his life to legal education and spent thirty years teaching at the Law School. It is supported by a trust fund in the University of South Dakota Law School Foundation established principally by Colonel Gunderson's family. Professor Rutledge delivered the 2004 Gunderson Lecture at the Law Review's Symposium on Sentencing and Punishment, which took place at the Law School on November 5, 2004. What follows is an adapted version of Professor Rutledge's lecture.

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Summary Of Carter V. State, 121 Nev. Adv. Op. 75, Collin Webster Jan 2005

Summary Of Carter V. State, 121 Nev. Adv. Op. 75, Collin Webster

Nevada Supreme Court Summaries

Appeal from a judgment of conviction, entered after jury verdict, for one count of attempted sexual assault.

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Summary Of Flores V. State Of Nevada, 121 Nev. Adv. Op. 72, Patti Ross Jan 2005

Summary Of Flores V. State Of Nevada, 121 Nev. Adv. Op. 72, Patti Ross

Nevada Supreme Court Summaries

Defendant Martha Flores was found guilty of first-degree murder by child abuse of her five-year-old stepdaughter, Zoraida Flores. Postmortem examinations concluded that the child had been physically abused and her death was caused by a blunt-force trauma to the head. Flores resided with her husband, Jose Flores, his five-year-old daughter Zoraida, Flores’ daughters and mother and an infant. Flores was the primary caregiver of the family while Jose worked to support them. On January 28, 2001, emergency medical personnel responded to the Flores’ apartment and provided assistance to Zoraida. They were unable to resuscitate the child. The postmortem examination of …

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Summary Of Foster V. State, 121 Nev. Adv. Op. 20, Debra L. Pieruschka Jan 2005

Summary Of Foster V. State, 121 Nev. Adv. Op. 20, Debra L. Pieruschka

Nevada Supreme Court Summaries

Troy Anthony Foster, appellant, was charged with four counts of sexual assault and one count of kidnapping. A jury found Foster guilty of three counts of sexual assault and acquitted him on one count of sexual assault and of kidnapping. Foster appealed his conviction asserting five assignments of error. The Nevada Supreme Court rejected Foster’s contentions concluding in part the evidence presented at trial was more than sufficient to sustain the jury’s verdict. Foster then filed a post-conviction petition for a writ of habeas corpus in district court, claiming ineffective assistance of both trial and appellate counsel. The district court …

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Summary Of Garcia V. State , Justin L. Carley Jan 2005

Summary Of Garcia V. State , Justin L. Carley

Nevada Supreme Court Summaries

Ramon Garcia appealed his convictions for: (1) burglary while in possession of a firearm, (2) robbery with the use of a deadly weapon, (3) first-degree kidnapping, 4. conspiracy to commit burglary, (5) another burglary while in the possession of a firearm, 6. conspiracy to commit robbery, (7) attempted robbery with the use of a deadly weapon, and 8. false imprisonment. Garcia argued that: (1) the jury instruction on false imprisonment was improper, (2). the state presented insufficient evidence to support a verdict on kidnapping and false imprisonment, (3) the district court erroneously failed to hold a hearing on his motion …

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Summary Of Hymon V. State, 121 Nev. Adv. Op. 23, Bryson D. Perkins Jan 2005

Summary Of Hymon V. State, 121 Nev. Adv. Op. 23, Bryson D. Perkins

Nevada Supreme Court Summaries

In April 2001, Hymon stole a purse from a woman in the lobby of an auto repair shop. He ran, and two of the shop’s mechanics pursued him. They caught up to him when he fell on the curb, but he stood and swung a four- to six-inch long pocketknife. They backed away, allowing him to escape, but the police apprehended him shortly thereafter. After Hymon requested to represent himself, the district court conducted a Faretta canvass,2 and concluded that Hymon was competent to waive his right to counsel. Hymon was uncooperative and unwilling to communicate with the prosecutor, so …

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Summary Of Warren V. State, 121 Nev. Adv. Op. 84, Charles R. Cordova, Jr. Jan 2005

Summary Of Warren V. State, 121 Nev. Adv. Op. 84, Charles R. Cordova, Jr.

Nevada Supreme Court Summaries

In November 2003 the Las Vegas Metropolitan Police Department executed a decoy operation targeting the crime of robbery. An officer was posed on a public street dressed as an intoxicated, off-duty casino dealer with a stack of twenty one-dollar bills visible in his left dress shirt pocket. The defendant approached the officer, made conversation and casually removed the dollar bills while placing his arm around the officer. When the officer acted as though he was turning his head to catch the defendant in the act, the defendant pushed the officer’s head away with his forearm twice. The defendant was arrested …

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Summary Of Wright V. Dep’T Of Motor Vehicles, 121 Nev. Adv. Op. 14, Scott Mcdonald Jan 2005

Summary Of Wright V. Dep’T Of Motor Vehicles, 121 Nev. Adv. Op. 14, Scott Mcdonald

Nevada Supreme Court Summaries

The defendant appealed the Department of Motor Vehicles’ (DMV) revocation of his driver’s license because he believed the arresting officer was without reasonable grounds for ordering an evidentiary blood alcohol test.2 Defendant also challenged the reliability of the field sobriety test (“FST”) as administered and questioned whether the DMV revoked his privileges with proper authority.3

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Ending Impunity The Case For War Crimes Trials In Liberia, Charles Chernor Jalloh, Alhagi Marong Jan 2005

Ending Impunity The Case For War Crimes Trials In Liberia, Charles Chernor Jalloh, Alhagi Marong

Faculty Publications

This paper argues that Liberia owes a duty under international law to investigate and prosecute the heinous crimes, including torture, rape and extra-judicial killings of innocent civilians, committed in that country by the various warring parties in the course of 14 years of brutal conflict. The authors evaluate the options for prosecution, starting with the possible use of Liberian courts. They argue that even if willing, the national courts are unable to render credible justice that protects the due process rights of the accused given the collapse of legal institutions and the paucity of financial, human and material resources in …

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Judicial Selection And Democratic Theory: Demand, Supply, And Life Tenure, Judith Resnik Jan 2005

Judicial Selection And Democratic Theory: Demand, Supply, And Life Tenure, Judith Resnik

Cardozo Law Review

How ought a democracy select its judges? Critics in Canada, England, and Wales invoke the democratic values of accountability and transparency to call for a diminution in prime ministerial control over judicial appointments. In the United States, Article III of the Constitution's text directs that the President nominate - with the advice and consent of the Senate - life-tenured federal judges. Bitter conflicts about particular nominees have produced many proposals for changes of that system. And in those states that rely on various forms of judicial election, concerns focus on funding and campaigning. In short, both globally and locally, democracies …

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Crawford V. Washington: The End Of Victimless Prosecution?, Andrew King-Ries Jan 2005

Crawford V. Washington: The End Of Victimless Prosecution?, Andrew King-Ries

Faculty Law Review Articles

Domestic violence offenses are difficult to prosecute because the batterer's actions often make the victim unavailable to testify. Since the mid- 1990s, prosecutors have pursued "victimless" prosecutions' to combat the problem.2 Victimless prosecutions seek to introduce reliable evidence without the victim's in-court testimony, often to maintain the victim's safety or to avoid re-victimizing the victim.3 The victimless prosecution is based largely on the admission of hearsay statements that a victim makes to 911 operators, police officers, doctors, nurses, paramedics, and social workers.4 Victimless prosecution has been a highly successful tool in society's efforts to eradicate domestic violence and it is …

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Deviance, Due Process, And The False Promise Of Federal Rule Of Evidence 403, Aviva A. Orenstein Jan 2005

Deviance, Due Process, And The False Promise Of Federal Rule Of Evidence 403, Aviva A. Orenstein

Articles by Maurer Faculty

In a significant break with traditional evidence rules and policies, Federal Rules of Evidence 413 and 414 (concerning rape and child abuse, respectively) allow jurors to use the accused's prior sexual misconduct as evidence of character and propensity. Courts have rejected due process challenges to the new rules, holding that Federal Rule of Evidence 403 serves as a check on any fairness concerns. However, courts' application of Rule 403 in cases involving these sexual propensity rules is troubling. Relying on the legislative history of the new rules and announcing a presumption of admissibility, courts have forsaken the traditional operation of …

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The Story Of United States V. Salerno: The Constitutionality Of Regulatory Detention, Daniel C. Richman Jan 2005

The Story Of United States V. Salerno: The Constitutionality Of Regulatory Detention, Daniel C. Richman

Faculty Scholarship

Is it constitutional for the government to lock up people without waiting to convict them at trial? If it is, what are the limits on the government's power to lock up anyone it deems dangerous? These are issues raised by preventive detention provisions in bail statutes, and addressed in United States v. Salerno. The controversy about these bail statutes, once so hotly contested, has died down. But the broader questions about the government's power to detain suspected criminals without giving them the benefit of full criminal process remain unresolved, and have taken on a new urgency as the nation confronts …

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The Bustle Of Horses On A Ship: Drug Control In New York City Public Housing, Jeffrey Fagan, Garth Davies, Jan Holland, Tamara Dumanovsky Jan 2005

The Bustle Of Horses On A Ship: Drug Control In New York City Public Housing, Jeffrey Fagan, Garth Davies, Jan Holland, Tamara Dumanovsky

Faculty Scholarship

For decades, violence, drugs and public housing have been closely linked in political culture and popular imagination. In 1990, the Department of Housing and Urban Development (HUD) made funds available to public housing authorities to combat drug and crime problems. This program, the Drug Elimination Program (DEP) combined several strategies under one administrative umbrella: police enforcement, drug treatment, drug prevention, youth and gang outreach, community organizing, integrated health and social service agencies, and tenant mobilization projects. In New York, the Housing Authority spent $165 million on DEP in its 330 public housing sites between 1990 and 1996. Yet there has …

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Sentencing: Learning From, And Worrying About, The States, Gerard E. Lynch Jan 2005

Sentencing: Learning From, And Worrying About, The States, Gerard E. Lynch

Faculty Scholarship

The Columbia Law Review's Symposium on sentencing, which took place less than two weeks after the Supreme Court's dramatic semi-invalidation of the federal sentencing guidelines, was certainly timely. Nevertheless, it is critical to understanding the Symposium's purposes to realize that it was not planned in response to United States v. Booker, or even to Blakely v. Washington. The Symposium was conceived before either case was decided, as a very conscious attempt to steer the discussion of sentencing away from Congress and the federal guidelines and toward states' experiences. The vast majority of criminals are sentenced in state …

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Al Capone's Revenge: An Essay On The Political Economy Of Pretextual Prosecution, Daniel C. Richman, William J. Stuntz Jan 2005

Al Capone's Revenge: An Essay On The Political Economy Of Pretextual Prosecution, Daniel C. Richman, William J. Stuntz

Faculty Scholarship

Most analyses of pretextual prosecutions – cases in which prosecutors target defendants based on suspicion of one crime but prosecute them for another, lesser crime – focus on the defendant's interest in fair treatment. Far too little attention is given to the strong social interest in non-pretextual prosecutions. Charging criminals with their "true" crimes makes criminal law enforcement more transparent, and hence more politically accountable. It probably also facilitates deterrence. Meanwhile, prosecutorial strategies of the sort used to "get" Al Capone can create serious credibility problems. The Justice Department has struggled with those problems as it has used Capone-style strategies …

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Justice And Fairness In The Protection Of Crime Victims, George P. Fletcher Jan 2005

Justice And Fairness In The Protection Of Crime Victims, George P. Fletcher

Faculty Scholarship

In this Article, Professor Fletcher discusses the crucial distinction between justice and fairness-as well as its effect on the shifting "boundaries of victimhood "-from a comparative viewpoint by examining the approaches that various human rights instruments take to the problem of victims' rights. While the European Convention on Human Rights represents an evolving "middle ground" in the treatment of victims' rights (such recent cases as X. & Y. v. The Netherlands, A. v. United Kingdom, and M.C. v. Bulgaria are examined), only the Rome Statute of the International Criminal Court gives real priority to victims of crime with …

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Developmental Incompetence, Due Process, And Juvenile Justice Policy, Elizabeth S. Scott, Thomas Grisso Jan 2005

Developmental Incompetence, Due Process, And Juvenile Justice Policy, Elizabeth S. Scott, Thomas Grisso

Faculty Scholarship

In 2003, the Florida District Court of Appeal reversed the murder conviction and life sentence imposed on Lionel Tate, who was twelve years old when he killed his six-year-old neighbor. Since Lionel was reported to be the youngest person in modern times to be sent to prison for life, the case had generated considerable debate, and the decision was appealed on several grounds. What persuaded the appellate court that the conviction could not stand, however, was the trial court's rejection of a petition by Lionel's attorney for an evaluation of his client's competence to assist counsel and to make a …

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Rethinking Retroactivity, Robert J. Jackson Jr. Jan 2005

Rethinking Retroactivity, Robert J. Jackson Jr.

Faculty Scholarship

Under the stringent test set forth in Teague v. Lane,' defendants convicted of criminal offenses are generally unable to collaterally attack their convictions by invoking constitutional rules of criminal procedure announced after their convictions become final.2 The purported exception to this general principle is said to require that a new constitutional rule be "implicit in the concept of ordered liberty'3 for it to be applied to criminal cases decided before its pronouncement. Once a rule of criminal procedure is characterized as "new,"4 Teague prohibits the rule's invocation in habeas proceedings unless the rule both "assure[s] that no man has been …

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Developmental Trajectories Of Legal Socialization Among Serious Adolescent Offenders, Alex R. Piquero, Jeffery Fagan, Edward P. Mulvey, Laurence Steinberg, Candice Odgers Jan 2005

Developmental Trajectories Of Legal Socialization Among Serious Adolescent Offenders, Alex R. Piquero, Jeffery Fagan, Edward P. Mulvey, Laurence Steinberg, Candice Odgers

Faculty Scholarship

Legal socialization is the process through which individuals acquire attitudes and beliefs about the law, legal authorities, and legal institutions. This occurs through individuals' interactions, both personal and vicarious, with police, courts, and other legal actors. To date, most of what is known about legal socialization comes from studies of individual differences among adults in their perceived legitimacy of law and legal institutions, and in their cynicism about the law and its underlying norms. This work shows that adults' attitudes about the legitimacy of law are directly tied to individuals' compliance with the law and cooperation with legal authorities. Despite …

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Historical Roots Of Regional Sentencing Variation, The Symposium, Ian Weinstein Jan 2005

Historical Roots Of Regional Sentencing Variation, The Symposium, Ian Weinstein

Faculty Scholarship

I am a law professor and a criminal defense lawyer, not a historian. It is with some trepidation that I stand before you to suggest that our very persistent regional sentencing variations have roots in the political struggles of Reformation England and the cultures of the subgroups that populated the first American colonies. I rely upon others for the historical proof, as you will see, but I think I do have standing to argue to you that we should consider whether or not there is room, even in federal sentencing, to account for deeply embedded regional variations in our basic …

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An Analysis Of The Nypd's Stop-And-Frisk Policy In The Context Of Claims Of Racial Bias, Andrew Gelman, Alex Kiss, Jeffrey Fagan Jan 2005

An Analysis Of The Nypd's Stop-And-Frisk Policy In The Context Of Claims Of Racial Bias, Andrew Gelman, Alex Kiss, Jeffrey Fagan

Faculty Scholarship

Recent studies by police departments and researchers confirm that police stop racial and ethnic minority citizens more often than whites, relative to their proportions in the population. However, it has been argued stop rates more accurately reflect rates of crimes committed by each ethnic group, or that stop rates reflect elevated rates in specific social areas such as neighborhoods or precincts. Most of the research on stop rates and police-citizen interactions has focused on traffic stops, and analyses of pedestrian stops are rare. In this paper, we analyze data from 175,000 pedestrian stops by the New York Police Department over …

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Attention Felons: Evaluating Project Safe Neighborhoods In Chicago, Andrew V. Papachristos, Tracey L. Meares, Jeffrey Fagan Jan 2005

Attention Felons: Evaluating Project Safe Neighborhoods In Chicago, Andrew V. Papachristos, Tracey L. Meares, Jeffrey Fagan

Faculty Scholarship

This research uses a quasi-experimental design to evaluate the impact of Project Safe Neighborhood (PSN) initiatives on neighborhood level crime rates in Chicago. Four interventions are analyzed: (1) increased federal prosecutions for convicted felons carrying or using guns, (2) the length of sentences associated with federal prosecutions, (3) supply-side firearm policing activities, and (4) social marketing of deterrence and social norms messages through justice-style offender notification meetings. Using an individual growth curve models and propensity scores to adjust for non-random group assignment, our findings suggest that several PSN interventions are associated with greater declines of homicide in the treatment neighborhoods …

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Against Prediction: Sentencing, Policing, And Punishing In An Actuarial Age, Bernard E. Harcourt Jan 2005

Against Prediction: Sentencing, Policing, And Punishing In An Actuarial Age, Bernard E. Harcourt

Faculty Scholarship

Actuarial methods – i.e., the use of statistical rather than clinical methods on large datasets of criminal offending rates to determine different levels of offending associated with one or more group traits, in order to (1) predict past, present or future criminal behavior and (2) administer a criminal justice outcome – now permeates the criminal law and its enforcement. With the single exception of racial profiling against African-Americans and Hispanics, most people view the turn to the actuarial as efficient, rational, and wealth-maximizing. The fact is, law enforcement agencies can detect more crime with the same resources if they investigate …

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