Criminal Law Commons^™

The Tools For Enforcing International Criminal Justice In The New Millennium: Lessons From The Yugoslavia Tribunal, Michael P. Scharf

Faculty Publications

It is one thing to create an international institution devoted to enforcing international justice; it is quite another to make international justice work. Unlike the Nuremberg Tribunal, whose orders were implemented by the Allied occupation forces, the ICC will have no constabulary. In the absence of a direct enforcement mechanism, the ICC will have to rely on state cooperation and indirect means of inducing compliance with its arrest orders and requests for judicial cooperation.

The range of enforcement measures potentially available to the ICC include: (1) condemnation of non-cooperation by the Assembly of State Parties or the U.N. Security Council; …

Cracking The Code: "De-Coding" Colorblind Slurs During The Congressional Crack Cocaine Debates, Richard Dvorak

Michigan Journal of Race and Law

This article proposes "de-coding" as a method for unveiling the racist purpose behind the enactment of race-neutral legislation. Through the use of "code words," defined as “phrases and symbols which refer indirectly to racial themes, but do not directly challenge popular democratic or egalitarian ideals,” legislators can appeal to racist sentiments without appearing racist. More importantly, they can do so without leaving evidence that can be traced back as an intent to discriminate. This article proposes to use "de-coding" as a method to unmask the racist purpose behind the enactment of the 100:1 crack versus powder cocaine ratio for mandatory …

A Judicious Solution: The Criminal Law Committee Draft Redefinition Of The Loss Concept In Economic Crime Sentencing, Frank O. Bowman Iii

Faculty Publications

In December 1999, the United States Sentencing Commission (Commission), an institution that had been in suspended animation for over a year with all seven voting seats vacant, fluttered its eyelids and came back to life. An agreement between the Senate and the White House produced seven new Commissioners: five sitting federal judges, the former General Counsel of the Commission, and a law professor. The new group began work immediately, making itself accessible in meetings with lawyers and judges around the country, exuding an air of intelligence and collegiality, and dispensing in short order with a backlog of amendments to the …

Extraditing Israeli Citizens To The United States- Extradition And Citizenship Dilemmas, Yaffa Zilbershats

Michigan Journal of International Law

This article will address the problems of extraditing Israeli citizens to the United States from both a normative and substantive perspective. The analysis will lead to a conclusion that the United States and Israel should adopt an amendment to the United States-Israel extradition treaty based on the new provision of the Israeli law regarding the extradition of its citizens. This analysis will also support general conclusions regarding the definitions of extradition and citizenship.

Crossing The Line: Rape-Murder And The Death Penalty, Phyllis L. Crocker

Law Faculty Articles and Essays

When a woman is raped and then murdered, it is among the most horrifying of crimes. It is also, often, among the most sensational, notorious, and galvanizing of cases. In 1964, Kitty Genovese was raped and murdered in Queens, New York. Her murder sparked soul-searching across the country because her neighbors heard her cries for help and did not respond: it made us question whether we had become an uncaring people. During the 1970s and 80s a number of serial killers raped and murdered their victims: including Ted Bundy in Florida and William George Bonin, the “Freeway Killer,” in Southern …

Sclerosis: Retributive Justice And The Rwandan Genocide, Mark A. Drumbl

Scholarly Articles

In the 1994 Rwandan genocide 800,000 people were massacred. The victims were overwhelmingly of the minority Tutsi ethnic group and the aggressors of the majority Hutu group. At present, 125,000 Hutu prisoners remain incarcerated while awaiting trial on genocide-related charges. This article argues that these trials, and the extensive incapacitation that necessarily precedes them, may do little to promote justice, regime legitimacy, or national reconciliation in Rwanda. This, in turn, raises broader questions about the role of criminal punishment and sentencing in situations of mass violence. Criminality usually attaches to deviant conduct. Mass political violence -- from Nazi Germany to …

Parallels In Predicting Dangerousness--What Price Security?, Vanessa Merton, Adele Bernhard

Elisabeth Haub School of Law Faculty Publications

One question is: why should an employer have any duty to intervene, respond, or warn when an employee is deemed “dangerous”? What expertise in making these predictions can your average business manager bring to the table? As lawyers we tend never to look at law that is more than a week old. Similarly, scientists prefer not to rely on science that is more than a few months old. Yet, here is an article written almost 20 years ago when I was a young Associate for Law at the Hastings Center for a symposium honoring the great forensic psychiatrist Dr. Jonas …

Straight Release: Justice Delayed, Justice Denied , Timothy J. Mcginty

Cleveland State Law Review

This Thesis discusses the ‘straight release’ program implemented by the Cleveland Police Department in the late 1990’s. It starts by describing the 24-hour charge or release rule, and how criminals were arrested, released, and arraignment notices were later sent to them by mail. Criminals used aliases to hinder the indictment procedure. Part V discusses national trends in arrest to disposition rates. Parts VI – X discusses Cleveland practices in the criminal justice system. Part XI discusses the effects of failure to identify arrested suspects before releasing them. Part XII describes the chaos of the municipal court. Part XIII discusses the …

Here Today, Gone Tomorrow - Three Common Mistakes Courts Make When Police Lose Or Destroy Evidence With Apparent Exculpatory, Elizabeth A. Bawden

Cleveland State Law Review

Part I of this Article examines the first question, what does it mean for evidence to have "apparent exculpatory value?" Part II of this Article answers the second question, when does Youngblood's bad faith requirement apply in failure to preserve evidence cases? Part III then seeks to determine the substance of Youngblood's bad faith requirement and identify the best approach to defining it. Ultimately, this Article argues that there are three common mistakes that courts make when applying Trombetta and Youngblood.

Newly Available, Not Newly Discovered, Penny J. White

The Journal of Appellate Practice and Process

Advances in science have made it possible to discover new evidence. This newly discovered evidence is not always admissible as evidence. This essay suggests methods by which appellate courts may approach a balance between the rigid application of limitation periods in serious criminal cases and admitting evidence that proves innocence.

The Response To Brecheen V. Reynolds: Oklahoma’S System For Evaluating Extra-Record Constitutional Claims In Death Penalty Cased, Jeremy B. Lowrey

The Journal of Appellate Practice and Process

This article attempts to define the “abuse of discretion” standard of review. The article begins by distinguishing the three types of appellate review. It then focuses on review of discretion. Articles written by Professors Maurice Rosenburg, Robert C. Post, and Judge Henery J. Friendly are next analyzed in order to further evaluate judicial discretionary decisionmaking. Caselaw is next used to discuss how courts have attempted to define and apply the abuse of discretion standard. Primary cases considered include Chevron U.S.A. v. Natural Resources Defense Council, Pierce v. Underwood, Cooter & Gell v. Hartmarx Corp., and Koon v. United States. Finally, …

The Role And Powers Of Defense Counsel In The Rome Statute Of The International Criminal Court, Kenneth S. Gallant

Law Faculty Scholarship

No abstract provided.

Disarray Among The Federal Circuits: Harmless Error Review Of Rule 11 Violations, Brent E. Newton

The Journal of Appellate Practice and Process

Federal Rule of Criminal Procedure 11 governs how a defendant must be counseled when pleading guilty or nolo contendre. Federal Courts of Appeals have held that violation of Rule 11 is harmless error. Since it is harmless error, the lower courts’ decisions are upheld. This article argues that the Federal Courts of Appeals have misapplied the harmless error standard when deciding Rule 11 issues.

Expedited Review Of Capital Post-Conviction Claims: Idaho’S Flawed Process, Joan M. Fisher

The Journal of Appellate Practice and Process

The Anti-Terrorism and Effective Death Penalty Act (“AEDPA”) is a federal attempt to expedite litigation in capital cases. Many states adopted unitary appeal systems in response to the AEDPA. Unitary systems consolidate the direct appeal and state post-conviction process. In Idaho, Idaho Code § 19-4908 establishes special proceedings for capital cases including a forty-two day limitation to present any claims. This article makes a critical analysis of Idaho’s capital post-conviction procedure.

Forgiveness And The Law, Martha Minow

Fordham Urban Law Journal

A discussion of the role of forgiveness in the law, substituting forgiveness for the law, and whether or not the law can or should pursue higher moral ambitions

Forgiveness And The Criminal Law: Forgiveness Through Medicinal Punishment, Dennis M. Cariello

Fordham Urban Law Journal

This article discusses the role of forgiveness in criminal law, focusing specifically on the nature of forgiveness, how and when society should forgive wrongdoers, and the nature of punishment.

When Victims Seek Closure: Forgiveness, Vengeance And The Role Of Government, Susan Bandes

Fordham Urban Law Journal

This article discusses the role of victims and their families in the sentencing of criminal defendants, including the emotional and ethical components of victims' desires to achieve justice and closure.

Forgiveness In The Criminal Justice System: If It Belongs, Then Why Is It So Hard To Find?, David M. Lerman

Fordham Urban Law Journal

This essay advocates the role of forgiveness within the criminal justice system, particularly from a prosecutor's perspective, and discusses common impediments to its increased presence and the leadership needed to allow it to develop within the system.

Forgiveness In The Criminal Law, Ian S. Weinstein (Moderator)

Fordham Urban Law Journal

A discussion of the role of forgiveness in criminal law, and the extent to which forgiveness should impact prosecutorial discretion. Includes a question and answer session with audience.

Forgiveness As A Problem-Solving Tool In The Courts: A Brief Response To The Panel On Forgiveness In Criminal Law, Derek A. Denckla

Fordham Urban Law Journal

This article is a response to Panel on Forgiveness in Criminal Law, and attempts to answer the following questions: Is there room for forgiveness in the criminal courts? If so, how does forgiveness manifest itself there? The article explores this issue in terms of the opportunities for forgiveness provided by "problem-solving" courts.

Forgiveness And The Criminal Law: Forgiveness Through Medicinal Punishment, Dennis M. Cariello

Fordham Urban Law Journal

This article discusses the role of forgiveness in criminal law, focusing specifically on the nature of forgiveness, how and when society should forgive wrongdoers, and the nature of punishment.

Restorative Justice And The Prosecutor, Frederick W. Gay

Fordham Urban Law Journal

A discussion of restorative justice and its relation to prosecutorial discretion. The article gives examples of the restorative alternatives to traditional criminal punishment and argues that such alternatives are an effective means of providing justice.

Now V. Scheidler, Round Two, Craig M. Bradley

Articles by Maurer Faculty

No abstract provided.

Terrorism On Trial: The Lockerbie Criminal Proceedings, Michael P. Scharf

Faculty Publications

On December 21, 1998, a bomb exploded in the cargo hold of Pan Am Flight 103 killing all 259 passengers and crew, as well as eleven residents of the town of Lockerbie where the wreckage of the Bowing 747 crashed 31,000 feet below.

Human Rights And International Mutual Legal Assistance: Resolving The Tension, Robert Currie

Articles, Book Chapters, & Popular Press

If indeed, as has been said, "it is fashionable nowadays to discuss the problems that arise from the application of general human rights to extradition", then it is also true that human rights concerns are increasingly being raised with regard to other forms of international criminal co-operation as well. As compliance with international human rights norms has become the subject of greater scrutiny by both States and international adjudicative bodies, concerns have been raised regarding their application to the various processes by which States aid each other in combating transnational crime. Prosecuting authorities are presented with problems of how the …

Human Rights And International Mutual Legal Assistance: Resolving The Tension, Robert Currie

Articles, Book Chapters, & Popular Press

If indeed, as has been said, "it is fashionable nowadays to discuss the problems that arise from the application of general human rights to extradition", then it is also true that human rights concerns are increasingly being raised with regard to other forms of international criminal co-operation as well. As compliance with international human rights norms has become the subject of greater scrutiny by both States and international adjudicative bodies, concerns have been raised regarding their application to the various processes by which States aid each other in combating transnational crime. Prosecuting authorities are presented with problems of how the …

Forgiveness In The Criminal Law, Ian S. Weinstein (Moderator)

Fordham Urban Law Journal

A discussion of the role of forgiveness in criminal law, and the extent to which forgiveness should impact prosecutorial discretion. Includes a question and answer session with audience.

Forgiveness And The Law - A Redemptive Opportunity, Douglas B. Ammar

Fordham Urban Law Journal

A discussion of the role of forgiveness in criminal law. The author relates the approach of the Georgia Justice Project, a nonprofit organization whose mission is to provide justice to indigent criminal defendants and help them become productive citizens.

Forgiveness In Psychology And Law: The Meeting Of Moral Development And Restorative Justice, Robert D. Enright, Bruce A. Kittle

Fordham Urban Law Journal

This article discusses the psychological meaning of forgiveness and its relation to the criminal justice system. Includes a discussion of the four phases of the development progression of forgiveness.

Restorative Justice And The Prosecutor, Frederick W. Gay

Fordham Urban Law Journal

A discussion of restorative justice and its relation to prosecutorial discretion. The article gives examples of the restorative alternatives to traditional criminal punishment and argues that such alternatives are an effective means of providing justice.