Criminal Law Commons^™

Opposing International Justice: Kenya’S Integrated Backlash Strategy Against The Icc, Laurence R. Helfer, Anne E. Showalter

Faculty Scholarship

The government of Kenya has employed a wide range of strategies to undermine the recently-dismissed prosecutions of President Uhuru Kenyatta and Deputy President William Ruto before the International Criminal Court (ICC). This Article argues that these strategies are part of an integrated backlash campaign against the ICC, one that encompasses seemingly unrelated actions in multiple global, regional and national venues. We identify three overarching themes that connect these diverse measures— politicizing complementarity, regionalizing political opposition, and pairing instances of cooperation and condemnation to diffuse accusations of impunity. By linking its discrete acts of opposition to these three themes, the government …

The Responsibility Gap In Corporate Crime, Samuel W. Buell

Faculty Scholarship

In many cases of criminality within large corporations, senior management does not commit the operative offense — or conspire or assist in it — but nonetheless bears serious responsibility for the crime. That responsibility can derive from, among other things, management’s role in cultivating corporate culture, in failing to police effectively within the firm, and in accepting lavish compensation for taking the firm’s reins. Criminal law does not include any doctrinal means for transposing that form of responsibility into punishment. Arguments for expanding doctrine — including broadening of the presently narrow “responsible corporate officer” doctrine — so as to authorize …

Project Safe Neighborhoods In Chicago: Looking Back A Decade Later, Ben Grunwald, Andrew V. Papachristos

Faculty Scholarship

Project Safe Neighborhoods (PSN) is a federally funded initiative that brings together federal, state, and local law enforcement to reduce gun violence in urban centers. In Chicago, PSN implemented supply-side gun policing tactics, enhanced federal prosecution of gun crimes, and notification forums warning offenders of PSN’s heightened criminal sanctions. Prior evaluations provide evidence that PSN initiatives have reduced crime in the first few years of their operation. But over a decade after the program was established, we still know little about whether these effects are sustained over an extended period of time. This Article examines PSN Chicago, an anti-violence program …

The Fragile Promise Of Open-File Discovery, Ben Grunwald

Faculty Scholarship

Under traditional rules of criminal discovery, defendants are entitled to little prosecutorial evidence and are thus forced to negotiate plea agreements and prepare for trial in the dark. In an effort to expand defendants’ discovery rights, a number of states have recently enacted “open-file” statutes, which require the government to share the fruits of its investigation with the defense. Legal scholars have widely supported these reforms, claiming that they level the playing field and promote judicial efficiency by decreasing trials and speeding up guilty pleas. But these predictions are based largely on intuition and anecdotal data without extended theoretical analysis …

The American Death Penalty Decline, Brandon L. Garrett, Alexander Jakubow, Ankur Desai

Faculty Scholarship

American death sentences have both declined and become concentrated in a small group of counties. In his dissenting opinion in Glossip v. Gross in 2014, Justice Stephen Breyer highlighted how from 2004 to 2006, "just 29 counties (fewer than 1% of counties in the country) accounted for approximately half of all death sentences imposed nationwide." That decline has become more dramatic. In 2015, fifty-one defendants were sentenced to death in thirty-eight counties. In 2016, thirty-one defendants were sentenced to death in twenty-eight counties. In the mid-1990s, by way of contrast, over 300 people were sentenced to death in as many …

Coordinating Compliance Incentives, Veronica Root

Faculty Scholarship

In today’s regulatory environment, a corporation engaged in wrongdoing can be sure of one thing: regulators will point to an ineffective compliance program as a key cause of institutional misconduct. The explosion in the importance of compliance is unsurprising given the emphasis that governmental actors — from the Department of Justice, to the Securities and Exchange Commission, to even the Commerce Department — place on the need for institutions to adopt “effective compliance programs.” The governmental actors that demand effective compliance programs, however, have narrow scopes of authority. DOJ Fraud handles violations of the Foreign Corrupt Practices Act, while the …

Actus Reus, Mens Rea, And Brain Science: What Do Volition And Intent Really Mean?, Erica Beecher-Monas, Edgar Garcia-Rill

Kentucky Law Journal

The foundational elements of criminal law, actus reus and mens rea, are vague, imprecise, and indeterminate categories that are based on outdated notions about human behavior. These confused categories affect not only what legally constitutes choice, volition, and intent, but also the defendant's ability to present evidence (since the categories define the evidence that will be admissible), and ultimately, criminal liability. In this Article we explain how neuroscience allows us to reconsider these legal concepts and conceive a more informed view of human behavior (and therefore criminal liabilty). The Article explains how distortions in brain function affect the way …

Recasting Vagueness: The Case Of Teen Sex Statutes, Cynthia Godsoe

Washington and Lee Law Review

When two minors below the age of consent have sex, who is the victim and who is the offender? Statutory rape law makes consensual sex among minors illegal in almost every state. Where half of high school students have had intercourse, the law’s immense scope and inevitable underenforcement allow prosecutors to virtually define the crime by the tiny percentage of cases they choose. Through the lens of peer statutory rape, this Article introduces and critiques “vaguenets”—broad, under-defined laws that punish widespread and largely harmless conduct, and invite selective enforcement. Like problematic police dragnet searches, the immense sweep of these statutes …

Costs Of Pretrial Detention, Shima Baughman

Utah Law Faculty Scholarship

Spending on U.S. incarceration has increased dramatically over the last several decades. Much of this cost is on incarcerating pretrial detainees—inmates not convicted of a crime—which constitute the majority of individuals in our nation’s jails. Current statutory schemes give judges almost complete discretion to order pretrial detention based on unexplained or unidentified factors. With this discretion, judges tend to make inconsistent decisions in every jurisdiction, some releasing almost all defendants—including the most dangerous—and others detaining most defendants—even those who are safe to release. There are constitutional and moral reasons to evaluate our current detention scheme, but even the fiscal impact …

Still Handcuffing The Cops? A Review Of Fifty Years Of Empirical Evidence Of Miranda's Harmful Effects On Law Enforcement, Paul Cassell, Richard Fowles

Utah Law Faculty Scholarship

The fiftieth anniversary of Miranda v. Arizona offers a chance to assess how the decision has played out in the real world and, in particular, to determine whether it has harmed law enforcement. In this Article, we take advantage of the time since the Miranda decision—now a little more than fifty years—to see whether it has produced the predicted harmful consequences. In particular, we survey the available empirical evidence about Miranda’s effects on law enforcement. We collect confession rate data, both from the time of Miranda and since, to assess whether Miranda caused confession rates to fall. We also review …

Legal Responses To Nonconsensual Pornography: Current Policy In The United States And Future Directions For Research, Cynthia J. Najdowski

Psychology Faculty Scholarship

Technological advances have created new avenues for the perpetration of sexual violence. The widespread availability of cameras has made it easier to take covert recordings of an individual’s intimate body parts, and whether sexually explicit images are recorded with or without an individual’s consent, growing access to the Internet has facilitated the nonconsensual dissemination of those images. Yet criminal laws have not kept pace with technology in most jurisdictions across the United States, and victims of nonconsensual pornography typically have no avenue by which to seek justice. There have been efforts to reform laws in a variety of jurisdictions, some …

Do International Criminal Tribunals Have A Deterrent Effect On Human Rights Abuses?, Rachel Lehr

War Crimes Memoranda

No abstract provided.

Modes Of Liability, Cumulative Convictions, And Charging Language, Ankita Channarasappa

War Crimes Memoranda

No abstract provided.

The Legal Authority Of Ice Breaking On The Great Lakes Between The United States Coast Guard And The Canadian Coast Guard, The Implications Of The Ice Breaking Services Fee By The Ccg, And The Potential Liability Of Canadian Criminal Code Section 263 On The Uscg, Jason Edward Stafford

War Crimes Memoranda

No abstract provided.

Standard Of Review For Evaluating Post-Conviction Requests For Review, Morgan E. Austin

War Crimes Memoranda

No abstract provided.

The Level Of Proof Required To Indict A Person And Send Them To Trial At The Extraordinary Chambers In The Courts Of Cambodia Specifically Addressing The Levels Of Proof To Indict A Person Of France And Other International Criminal Courts, Also Analysing The Statutes, Documents And Jurispurdiction Of The Eccc To Draw A Conclusion, Xiong Shi

War Crimes Memoranda

No abstract provided.

What Would Be The Legal And Political Ramifications If The Un Decided To Stop Funding The Eccc Prior To The Current Investigations And Trials Being Finalized? Assess The Ramifications In The Cambodian And International Context., Stephanie M. Farah

War Crimes Memoranda

No abstract provided.

In International Criminal Law Does The Prosecutor Have A Responsibility To Ensure That The Facts Forming The Historical Context In Which Large-Scale Human Rights Abuses Occurred Are Adjudicated At Trial? Why Or Why Not?, Tyler Portner

War Crimes Memoranda

No abstract provided.

Whether The Adoption Of Civil Criminal Justice System As Opposed To The Common Law Criminal Justice System In Eccc Is A Correct Decision. Specifically Addressing The Pros And Cons Of Both Legal Systems, Lulu Jing

War Crimes Memoranda

No abstract provided.

Crime Victims' Rights, Paul Cassell

Utah Law Faculty Scholarship

Over the last 40 years, advocates for crime victims have succeeded in enshrining victims’ rights in state constitutions and other enactments. These provisions show that a consensus has developed around the country on certain core victims’ rights. Included in the core are, among other things, the right to notice of court hearings, to attend court hearings, to be heard at appropriate court hearings, to proceedings free from unreasonable delay, to consideration of the victims’ safety during the process, and to restitution. The current challenge for the country is ensuring that these core rights are fully and effectively implemented and that …

Fundamentally Unfair: Databases, Deportation, And The Crimmigrant Gang Member, Katherine Conway

American University Law Review

Provocative language painting immigrants as dangerous criminals and promises of increased immigration enforcement were cornerstones of Donald j Trump's presidential candidacy. As president, he has maintained this rhetoric and made good on many of his promises by broadening the definition of "criminal conduct" for immigration enforcement purposes, touting a renewed focus on immigrant gangs and cartels, and conducting several nation-wide anti-gang sweeps that placed an estimated 1095 "known" gang members in Immigration and Customs Enforcement (ICE) custody. But the Trump Administration did not create the specter of the criminal immigrant, or "crimmigrant," gang member, nor did it create the detection …

War/Crimes And The Limits Of The Doctrine Of Sources, Steven R. Ratner

Book Chapters

International humanitarian law (IHL) and international criminal law (ICL) are the product of lawmaking processes that are not captured in the black-letter doctrine of sources under which Article 38 of the ICJ Statute is the rule of recognition for international law. Despite efforts by certain institutional players and scholars to place these two regimes squarely within Article 38, both remain distinct in terms of how actors determine whether a purported rule is a legal rule. These distinctions constitute a challenge to the idea of a unified rule of recognition and argue instead for looking for indicators (not rules) about a …

Exculpation As Inculpation, Russell L. Christopher

Articles, Chapters in Books and Other Contributions to Scholarly Works

Should a criminal defendant who contrives, creates, or causes the conditions of her own defense forfeit the defense? For example, suppose a provocateur taunts a provocatee into unlawfully attacking so that the provocateur may justifiably kill in self-defense. There are two competing approaches. Under the principle that defense-contrivers have "unclean hands," the predominant approach of the criminal law is to bar the defense (the Legal approach). Disagreeing, most criminal theorists advocate both granting the contrived defense and, seemingly paradoxically, imposing criminal liability for culpably contriving the defense (the Theoretical approach). That is, seeking exculpation is itself inculpatory. The Theoretical approach …

The Criminal Justice Black Box, Samuel R. Wiseman

Scholarly Publications

"Big data "-- the collection and statistical analysis of numerous digital data points -- has transformed the commercial and policy realms, changing firms' understanding of consumer behavior and improving problems ranging from traffic congestion to drug interactions. In the criminal justice field, police now use data from widely dispersed monitoring equipment, crime databases, and statistical analysis to predict where and when crimes will occur, and police body cameras have the potential to both provide key evidence and reduce misconduct. But in many jurisdictions, digital access to basic criminal court records remains surprisingly limited, and, in contrast to the civil context, …

Drug Court Versus Incarceration: Which Is More Effective?, Erin Alexander, Kathryn Apperson, Megan Flannigan, Sarah Jean, Lintag Rosalina, Jennifer Lynch, Ethan Schwartz

OUR Journal: ODU Undergraduate Research Journal

Aim: This study explores the affect drug court treatment programs have on the sobriety and employment status of the participants.

Background: Drug addiction has been an ongoing issue nationwide, and with addiction comes drug related crimes. Currently the preferred solution to this epidemic is to impose longer and longer lengths of incarceration for every incurred infraction. Methods: A descriptive correlational design will be used for this research study to evaluate the effectiveness of drug court compared to incarceration. The participants will be chosen by a random sampling of 100 residents of the Hampton Roads area of Virginia--50 …

Is The Eccc’S Supreme Court Chamber’S Conception Of A Common Criminal Plan In The Case 002/01 Appeal Judgment Supported By Customary International Law? Specifically Addressing The Arguments Surrounding The Supreme Court Chamber’S Rejection Of The Existence Of Jce3 And Whether Post World War Ii Jurisprudence Establishes The Existence Of Jce3 In Customary International Law., Jordan Elizabeth Dinsmore

War Crimes Memoranda

No abstract provided.

A Puncher's Chance: Assessing The Classification Of Martial Artists' Hands As Deadly Weapons, Michael R. Romeo

Jeffrey S. Moorad Sports Law Journal (1994 - )

No abstract provided.

Redrawing The Boundaries Of Relational Crime, Cynthia Godsoe

Faculty Scholarship

No abstract provided.

Online Dispute Resolution: Stinky, Repugnant, Or Drab, Robert J. Condlin

Cardozo Journal of Conflict Resolution

In Part II, I provide a brief overview of ODR systems, describing the largest, most well-known, and most sophisticated platforms now in place, to give the reader a sense of the- richness, variety, and benefits of online disputing, and a hint of developments still to come. In Part III, I describe certain legal, political, and moral concerns that have yet to be addressed in the ODR literature, and identify some of the unintended consequences the widespread adoption of ODR systems might produce. And in Part IV, I describe ODR's unfinished agenda, the questions proponents of the process must answer, and …

Protein Found At The Scene Of The Crime: The Potential For Using Proteomics For Identification, Gavin R. Tisdale

Dissertations and Honors Papers

Hair has long been collected from crime scenes as part of trace evidence. Originally, hair was used for some exclusionary purposes—only general qualities about an unknown source could be determined. Eventually, DNA was used to help identify the source but only if the root was still attached. Within the last two years, however, two major studies have used proteomics—the study of human protein sequences—to extract and identify protein sequences in an unknown source in order to match it to a known source. These two studies support the same hypothesis: proteomics is currently a viable method for narrowing down the source …