Criminal Law Commons^™

Is Felony Murder The New Depraved Heart Murder: Considering The Appropriate Punishment For Drunken Drivers Who Kill, Dora W. Klein

Faculty Articles

In recognition of the increasing use of felony-murder statutes to prosecute drunken drivers who kill, this Article considers various criticisms and defenses of the felony-murder rule as they apply specifically to felony DWI cases. Part II of this Article discusses several recent precedent setting cases in which drunken drivers who killed were prosecuted under felony murder statutes. Part III explores whether such prosecutions are proper, given the existence of special narrower vehicular manslaughter provisions that a legislature might have intended to be the sole means of prosecuting drunk drivers who kill. Part IV discusses three particular limiting doctrines-merger, inherent dangerousness, …

Judicial Participation In Plea Bargaining: A Dispute Resolution Perspective, Rishi Batra

Faculty Articles

There is a common perception that judges do not or should not play a role in the criminal plea bargaining discussions between prosecutors and defense counsel. However, in many state jurisdictions, judicial participation is allowed or even encouraged by statute or by case law. This Article briefly summarizes some of the issues with the plea bargaining process, including how structural issues with the way defense counsel are appointed and compensated, along with the power of prosecutors, makes good representation for defendants less likely. By then performing a fifty-state survey of rules for judicial participation in plea bargaining, the Article explicates …

Mandatory Reporting Of Campus Sexual Assault And Domestic Violence: Moving To A Victim-Centric Protocol That Comports With Federal Law, Jill C. Engle

Faculty Scholarship

This Article will examine "mandatory reporting" of campus domestic violence and sexual assault' by faculty members when a student discloses this kind of incident to them. This Article describes the legal and social landscape of mandatory reporting and the attendant challenges, along with the policies and practices that colleges should adopt for faculty reporting to comply with federal law while still remaining sensitive to victim needs.

Sentencing Rules And Standards: How We Decide Criminal Punishment, Jacob Schuman

Faculty Scholarship

Over the course of the past 300 years, American sentencing policy has alternated between “determinate” and “indeterminate” systems of deciding punishment. Debates over sentence determinacy have so far focused on three main questions: Who should decide punishment? What makes punishment fair? And why should we punish wrongdoers at all?

In this Article, I ask a new, fourth, question: How should we decide punishment? I show that determinate sentencing uses rules to determine sentences, while indeterminate sentencing relies on standards. Applying this insight to federal sentencing practice, I demonstrate that district court judges “depart” or “vary” from the United States Sentencing …

Probability And Punishment: How To Improve Sentencing By Taking Account Of Probability, Jacob Schuman

Faculty Scholarship

The United States Sentencing Guidelines place little emphasis on probability. Instead, the Guidelines recommend a sentence in each case based only on whether certain facts about the offender’s crime exceed a “threshold” level of likelihood. Guidelines sentences therefore fail to reflect the precise odds of each defendant’s wrongdoing, which makes them both inefficient and unfair. This model of decision-making is particularly problematic in drug sentencing, where judges often impose lengthy sentences based on drug quantity calculations that carry a high risk of error. To address these problems, district courts should exercise their discretion and policymakers should implement reforms that incorporate …

Comment: The Doctrine Of Chances, Brides Of The Bath And A Reply To Sean Sullivan, Paul F. Rothstein

Georgetown Law Faculty Publications and Other Works

The ‘Doctrine of Chances’ is a doctrine of probability that purports to solve an apparent logical conundrum or contradiction in the law of Evidence.

It is the author's thesis in this article that the doctrine of chances—in any acceptable logical form including that described by Mr. Sullivan—does properly describe when this kind of ‘other wrongs’ evidence is relevant, and how probative it is, but that relevance and probative value where this kind of proof is offered does depend on propensity reasoning even under these theories even in the cases where they say it does not. He is not simply arguing …

Substitute Arguments In Constitutional Law, Louis Michael Seidman

Georgetown Law Faculty Publications and Other Works

In this article, I argue that that substitution is crucial to our practice of constitutional law. Of course, if one wished, one could easily extend the domain of substitution beyond these boundaries. Substitute arguments are an important aspect of law more generally and, indeed, of life. I have nonetheless chosen to limit my discussion to constitutional substitution because, I believe, overt discussion of substitution in this particular area illuminates important aspects of our constitutional regime-–aspects that substitution itself regularly obscures. To put my central point directly, I hope to show that constitutional law amounts to one, giant substitute argument.

Intimate Partner Criminal Harassment Through A Lens Of Responsibilization, Isabel Grant

All Faculty Publications

Feminist scholars have demonstrated the gendered nature of intimate violence, and the tendency to put the responsibility on women to avoid both sexual and physical violence. The degree to which this responsibility is based on stereotypes about the “good victim” has been well documented in the context of sexual assault. This paper applies these insights to the context of intimate partner criminal harassment. All available statistics suggest that intimate partner criminal harassment is committed overwhelmingly by men against former female intimate partners. This crime affects thousands of women annually and can have devastating implications for their physical and mental health. …

Catalogs, Alex Stein, Gideon Parchomovsky

Faculty Scholarship

No abstract provided.

The Faults In "Fair" Trials: An Evaluation Of Regulation 55 At The International Criminal Court, Margaux Dastugue

Vanderbilt Journal of Transnational Law

Despite its reputation as a "provision of an exceptional nature," Regulation 55 has become one of the most contested procedural devices employed by the judges at the International Criminal Court (ICC). Hailing from civil law tradition, Regulation 55 permits the ICC to modify the charges against an accused at any time--either during or after the trial--if the judiciary decides it cannot convict the accused on the original charges. This use of Regulation 55 in three of the ICC's seven trials has demonstrated that the ICC cannot effectively safeguard a defendant's fundamental trial rights: the right to be informed of charges, …

Repatriation Of Korean Cultural Property Looted By Japan-Can A Sincere Apology Resolve The Centuries-Old Korea/Japan Disputes?, Melissa (Youngjae) Koo

Cardozo Journal of Conflict Resolution

This Note will focus on the disputes between Korea, both North and South Korea, and Japan surrounding Korean cultural property looted by Japan and will explore concrete solutions for resolving such issues through alternative dispute resolution-more specifically, an apology. It will consider two predominant exampies of cultural property looting, which occurred during Japanese invasions of Korea-first, at the end of the sixteenth century and, the second, from 1910 to 1945. Additionally, Japan has frequently been characterized as being a "significant market" for stolen cultural property. It is reported that there are at least 34,157 objects of Korean origin in Japan, …

Biometric Passwords And The Privilege Against Self-Incrimination, Kara Goldman

Cardozo Arts & Entertainment Law Journal

No abstract provided.

Gender Based Violence As A Continuum Of Human Rights Violations In Russia And The Czech Republic, Alena Lebron

Dissertations and Theses

Gender-based violence can take various forms – physical, sexual, psychological, and economic. Violence against women is a global public health problem and not only violates human rights, but also hampers productivity, reduces human capital, and undermines economic growth. Since the collapse of the Soviet Union in 1991, human trafficking for sexual exploitation and domestic violence have become a significant problem in post-communist countries. The fall of the Soviet Union also shaped national gender policies in post-communist countries. Despite the common challenges they face, success in implementing anti-trafficking procedures and measures against domestic violence varies from country to country.

According to …

Examining The Websites Of Canada’S ‘Top Sex Crime Lawyers’: The Ethical Parameters Of Online Commercial Expression By The Criminal Defence Bar, Elaine Craig

Articles, Book Chapters, & Popular Press

Online advertising has become a primary source of information about legal services. This trend towards web-based marketing of legal services poses new challenges to the regulation of the legal profession. Challenges which, to date, have not been fully met. It also creates a new source of data for researchers studying aspects of the legal profession such as legal ethics, lawyers’ perspectives and strategies, and legal discourse. The objective of this study is to examine the most prominent websites in Canada that advertise legal representation for individuals accused of sexual offences. The study of these websites yielded two types of observations …

Personal Stare Decisis, Hiv Non-Disclosure, And The Decision In Mabior, Elaine Craig

Articles, Book Chapters, & Popular Press

This article discusses the concept of personal stare decisis and the issue of horizontal precedent through examination of Canada's jurisprudence on the (over) criminalization of HIV non-disclosure. The Court's reasoning in R v Cuerrier and R v Mabior, as well as the trial decisions decided since Mabior are examined. The point is not to suggest that Justice McLachlin’s approach in Cuerrier offered the perfect solution to this issue. Indeed, as Isabel Grant argues, a better approach would remove non-disclosure of HIV status from the sexual assault criminal law regime and in its stead reintroduce the use of offences such as …

The Protection Of Human Rights In The Suppression Of Transnational Crime, Robert Currie

Articles, Book Chapters, & Popular Press

This chapter examines the troubled relationship between the various legal regimes under which states cooperate to suppress crime and the protection of human rights, specifically the procedural human rights of individuals targeted for investigation in transnational cases. It provides an analysis of what rights protections exist in the context of the suppression treaties themselves, and also whether and to what extent international human rights law imposes obligations on states when they engage in inter-state cooperation in criminal matters (eg extradition, mutual legal assistance). It concludes that despite the topic being an active one for some decades, relatively few hard human …

Report From The Restorative Justice Process At The Dalhousie University Faculty Of Dentistry, Jennifer Llewellyn, Jacob Macisaac, Melissa Mackay

Articles, Book Chapters, & Popular Press

In December 2014, female students in Dalhousie University’s Faculty of Dentistry filed complaints under the University’s Sexual Harassment Policy after they became aware some of their male colleagues had posted offensive material about them in a private Facebook group. The select materials revealed from the Facebook group reflected misogynistic, sexist and homophobic attitudes. At the complainants’ request, the University began a restorative justice process to investigate the matter, address the harms it caused and examine the climate and culture within the Faculty that may have influenced the offensive nature of the Facebook group’s content. Twenty-nine students from the class of …

Personal Stare Decisis, Hiv Non-Disclosure, And The Decision In Mabior, Elaine Craig

Articles, Book Chapters, & Popular Press

This article discusses the concept of personal stare decisis and the issue of horizontal precedent through examination of Canada's jurisprudence on the (over) criminalization of HIV non-disclosure. The Court's reasoning in R v Cuerrier and R v Mabior, as well as the trial decisions decided since Mabior are examined. The point is not to suggest that Justice McLachlin’s approach in Cuerrier offered the perfect solution to this issue. Indeed, as Isabel Grant argues, a better approach would remove non-disclosure of HIV status from the sexual assault criminal law regime and in its stead reintroduce the use of offences such …

Juvenile Transfer To Adult Criminal Court: Why Transfer Is Not The Best Method In Addressing Juvenile Delinquency, Sarah E.S. Kukino

CMC Senior Theses

Reducing juvenile delinquency is an important issue because today’s juvenile population will become the next generation of contributing members to society. Therefore, the juvenile justice system is faced with the challenge of creating effective methods of decreasing delinquency and providing necessary treatment to juvenile offenders. Legislators implemented juvenile transfer to adult criminal court with the intent of increasing punishments in order to deter future juvenile crime and to hold juvenile offenders accountable for their criminal behavior. This paper shows why juvenile transfer is not an effective method in addressing the issues of juvenile delinquency by looking at several studies that …

A Philosophical Analysis Of California Determinate Sentencing, Three Strikes, And Realignment, Madeline Stein

CMC Senior Theses

This thesis explores the relationship between philosophy and policy in the context of three California policies, Determinate Sentencing, Three Strikes, and Realignment. The philosophy portion includes theories of retribution, deterrence, and rehabilitation, focusing on the tensions and conflicts within them.

Collateral Consequences And The Preventive State, Sandra G. Mayson

Scholarly Works

Approximately eight percent of adults in the United States have a felony conviction. The “collateral consequences” of criminal conviction (CCs) — legal disabilities imposed by legislatures on the basis of conviction, but not as part of the sentence — have relegated that group to permanent second class legal status. Despite the breadth and significance of this demotion, the Constitution has provided no check; courts have almost uniformly rejected constitutional challenges to CCs. Among scholars, practitioners and mainstream media, a consensus has emerged that the courts have erred by failing to recognize CCs as a form of additional punishment. Courts should …

Examining The Websites Of Canada’S ‘Top Sex Crime Lawyers’: The Ethical Parameters Of Online Commercial Expression By The Criminal Defence Bar, Elaine Craig

Articles, Book Chapters, & Popular Press

Online advertising has become a primary source of information about legal services. This trend towards web-based marketing of legal services poses new challenges to the regulation of the legal profession. Challenges which, to date, have not been fully met. It also creates a new source of data for researchers studying aspects of the legal profession such as legal ethics, lawyers’ perspectives and strategies, and legal discourse. The objective of this study is to examine the most prominent websites in Canada that advertise legal representation for individuals accused of sexual offences. The study of these websites yielded two types of observations …

Effective Aggressiveness And Inconsistencies In The Bijuridical Treatment Of Aggressive Behaviour: Mixed Martial Arts, Bullying, And Sociolegal Quandaries, Sara Gwendolyn Ross

Articles, Book Chapters, & Popular Press

This paper seeks to address effective aggressiveness and the treatment of aggressive behaviour in the context of MMA in comparison to the balance of the formal Canadian legal landscape. I choose anti-bullying legislation, and its treatment of aggressive behaviour, as a counterexample to the treatment of aggressive behaviour within the MMA regulatory framework. By intertextually linking and superimposing these two categories of legislation, a critical lens drawing on institutional ethnography is applied. This is done to question and deconstruct the differential treatment of aggressive behaviour and the rationale behind the legislative mixed message sent. This lens also allows me to …

Applications Of Neuroscience In Criminal Law: Legal And Methodological Issues, John B. Meixner Jr.

Scholarly Works

The use of neuroscience in criminal law applications is an increasingly discussed topic among legal and psychological scholars. Over the past 5 years, several prominent federal criminal cases have referenced neuroscience studies and made admissibility determinations regarding neuroscience evidence. Despite this growth, the field is exceptionally young, and no one knows for sure how significant of a contribution neuroscience will make to criminal law. This article focuses on three major subfields: (1) neuroscience-based credibility assessment, which seeks to detect lies or knowledge associated with a crime; (2) application of neuroscience to aid in assessments of brain capacity for culpability, especially …

Expunging America's Rap Sheet In The Information Age, Jenny Roberts

Scholarly Articles in Law Reviews & Journals

"Getting a Second Chance After a Criminal Record.", "Want to Expunge Your Record?', "South Carolina Debating If It Should be Easier to Expunge a Brush with the Law." "Making a Fresh Start in Little Village." These are only some of the headlines of newspaper articles and television segments that came up in a Google Alert for "expungement" during one typical week in late 2014. The same week, in Cincinnati, Ohio, city council members backed expungement of low-level marijuana convictions. Expungement news that week was not limited to the United States. In Jamaica, the legislature passed a bill that allows expungement …

Learning From Our Mistakes: Using Immigration Enforcement Errors To Guide Reform, Amanda Frost

Scholarly Articles in Law Reviews & Journals

Immigration scholars and advocates frequently criticize our immigration system for imposing severe penalties akin to (or worse than) those in the criminal justice system — such as prolonged detention and permanent exile from the United States — without providing sufficient procedural protections to minimize enforcement errors. Yet there has been relatively little scholarship examining the frequency of errors in immigration enforcement and identifying recurring causes of those errors, in part because the data is hard to find. This Article begins by canvassing some of the publicly available data on enforcement errors, which reveal that such mistakes occur too frequently to …

Trade Secret Hacking, Online Data Breaches, And China’S Cyberthreats, Peter K. Yu

Cardozo Law Review de•novo

Taking advantage of the forum provided by this timely Symposium, this Article closely examines the ongoing debate on China’s sustained effort in using online hacking and other intrusive techniques to steal trade secrets and proprietary data from U.S. businesses. Part I outlines the five common narratives that have thus far been advanced to recount this widely criticized effort. Sensing the narratives’ negative overtones, Part II offers five modest suggestions on how a more positive debate can be constructed to help identify ways to reduce online hacking and data breaches as well as to enhance the protection of trade secrets and …

Mistaken Eyewitness Identifications In Maryland, David Aaronson, Julia Fox

Scholarly Articles in Law Reviews & Journals

No abstract provided.

Crimmigration Creep: Reframing Executive Action On Immigration, Jayesh Rathod

Scholarly Articles in Law Reviews & Journals

In this Essay, I seek to build upon existing scholarship relating to DACA and DAPA, by offering an alternate lens through which to examine the programs. Specifically, I argue that DACA and DAPA, by naming and entrenching the “significant misdemeanor” bar to eligibility, contribute to a concerning expansion of “crimmigration law.” To be sure, neither program exists in codified law; nevertheless, the eligibility bars under DACA and DAPA are poised to wreak doctrinal havoc by upending the way particular criminal conduct is treated in the U.S. immigration system. In some respects, the DACA and DAPA bars are more stringent than …

The Stereotyped Offender: Domestic Violence And The Failure Of Intervention, Carolyn B. Ramsey

Publications

Scholars and battered women's advocates now recognize that many facets of the legal response to intimate-partner abuse stereotype victims and harm abuse survivors who do not fit commonly accepted paradigms. However, it is less often acknowledged that the feminist analysis of domestic violence also tends to stereotype offenders and that state action, including court-mandated batterer intervention, is premised on these offender stereotypes. The feminist approach can be faulted for minimizing or denying the role of substance abuse, mental illness, childhood trauma, race, culture, and poverty in intimate-partner abuse. Moreover, those arrested for domestic violence crimes now include heterosexual women, lesbians, …