Criminal Law Commons^™

Two Excursions Into Current U.S. Supreme Court Opinion-Writing, Paul F. Rothstein

Georgetown Law Faculty Publications and Other Works

In the last weeks in June, 2015, as the present term of the U.S. Supreme Court drew to a close, many controversial and important decisions were handed down by the Court. The substance of the decisions has been written about extensively. Two of the decisions in particular, though, caught my eye as a teacher of legal techniques, not for the importance of the subject of the particular decision, but for what they may illustrate in a teachable fashion about at least some opinion writing. The two cases are Ohio v. Clark (June 18, 2015) interpreting the Confrontation Clause of the …

Foreword | Contested Justice: The Politics And Practice Of Internationcontested Justice, The Politics And Practice Of International Criminal Court Interventionsal Criminal Court Interventions, Ruti G. Teitel

Articles & Chapters

No abstract provided.

From Commitment To Compliance: Enforceability Of Remedial Orders Of African Human Rights Bodies, Roger-Claude Liwanga

Brooklyn Journal of International Law

Over the last seven decades, there has been a global proliferation of international and regional human rights tribunals. But with no coercive power to enforce their judgments, these international tribunals rely either on the good faith of the State parties or on the political process for the implementation of their remedial orders. This nonjudicial approach to enforcement has showed its limits, as most State parties are noncompliant with international judgments to the detriment of human rights victims. This article recommends a new approach involving the judicialization of the post-adjudicative stage of international proceedings as an avenue to increase the enforceability …

The Right To No: The Crime Of Marital Rape, Women's Human Rights, And International Law, Melanie Randall, Vasanthi Venkatesh

Brooklyn Journal of International Law

More than half of the world’s countries do not explicitly criminalize sexual assault in marriage. While sexual assault in general is criminalized in these countries, sexual assault perpetrated by a spouse is entirely legal. The human rights violations inhere in acts of violence against women are now well recognized. Yet somehow marital rape is a particular form of gendered violence that has escaped both criminal law sanctions and human rights approbation in a great number of the world’s nations.

This silence in the law creates legal impunity for men who sexually assault or rape the women who are their wives …

Indemnification As An Alternative To Nullification, Robert A. Mikos

Vanderbilt Law School Faculty Publications

The federalization of criminal law arguably threatens the states’ traditional police powers. Congress has criminalized myriad activities the states condone (or at least tolerate); it has denied federal criminal defendants rights they would enjoy in state proceedings; and it has imposed harsher punishments for crimes proscribed by both levels of government. In many instances, Congress’s decision to supplant the policy choices made by the states appears unjustified by any legitimate federal interest. The conventional wisdom suggests there is very little the states themselves can do to stop the federalization of criminal law and the resultant diminution of state prerogatives. The …

Regulating Sex Work: Assimilationism, Erotic Exceptionalism And The Challenge Of Intimate Labor, Adrienne D. Davis

Scholarship@WashULaw

Most commentators on sex markets focus on the debate between abolitionists and those who defend and support professional sex work. This paper, instead, looks at debates within the pro-sex work camp, uncovering some unattended tensions and contradictions. It shows that, within this camp, some stress the labor aspect, urging that sex markets perpetuate a “vulnerable population” of workers, similar to others who perform highly risky and/or exploited labor, and should be regulated accordingly. In this view, sex work would be assimilated into other labor. Others, though, take a more anti-regulatory stance. They exceptionalize this form of labor, arguing that because …

The Promise And Peril Of The Anti-Commandeering Rule In The Homeland Security Era: Immigrant Sanctuary As An Illustrative Case, Trevor George Gardner

Scholarship@WashULaw

Despite the broad powers wielded by the federal government in security administration, the Supreme Court’s holding in Printz v. United States serves as a substantial check against federal overreach. Hand wringing by legal scholars over the Court’s reasoning in Printz and the rigid rules against commandeering attached to this reasoning have obscured the fact that the case now stands as a bulwark against the expansion of federal authority over state, county, and local police. Given the holding in Printz, ICE cannot require the active participation of subnational police in immigration enforcement and must instead—despite its previous assertions to the contrary—solicit …

Ethics In Criminal Advocacy, Peter A. Joy, Ellen Yaroshefsky

Scholarship@WashULaw

Several ethics issues in criminal advocacy came to the forefront again in 2014. Although the U.S. Supreme Court did not decide important cases that cut across criminal law and the ethical obligations of defense counsel or prosecutors in 2014, there were still several other important developments and stories in the news. For example, decisions of prosecutors in Missouri and New York that they did not have a conflict of interest in considering charges against police officers in the deaths of Michael Brown and Eric Garner, both unarmed African America men, led to outcries of injustice and double-standards favoring police. In …

For Whom The Data Tolls: A Reunified Theory Of Fourth And Fifth Amendment Jurisprudence, Bryan H. Choi

Publications

Data privacy demands a reunified theory of the Fourth and Fifth Amendments. Data technologies allow personal information to be disembodied from physical bodies and “possessed” simultaneously by both first persons and third parties. As a result, the government has been able to use a divide-and-conquer strategy to obtain incriminating evidence alternately from the data intermediary or from the suspect.

Currently, Fourth Amendment doctrine and Fifth Amendment doctrine work at cross-purposes. The privacy community has already sounded the alarm on the “third-party doctrine,” which allows the government to sidestep the Fourth Amendment when demanding evidence from third parties. But few have …

A Provocative Defense, Aya Gruber

Publications

It is common wisdom that the provocation defense is, quite simply, sexist. For decades, there has been a trenchant feminist critique that the doctrine reflects and reinforces masculine norms of violence and shelters brutal domestic killers. The critique is so prominent that it appears alongside the doctrine itself in leading criminal law casebooks. The feminist critique of provocation embodies several claims about provocation's problematically gendered nature, including that the defense is steeped in chauvinist history, treats culpable sexist killers too leniently, discriminates against women, and expresses bad messages. This Article offers a (likely provocative) defense of the provocation doctrine. While …

When Theory Met Practice: Distributional Analysis In Critical Criminal Law Theorizing, Aya Gruber

Publications

Progressive (critical race and feminist) theorizing on criminal law exists within an overarching American criminal law culture in which the U.S penal system has become a "peculiar institution" and a defining governance structure. Much of criminal law discourse is subject to a type of ideological capture in which it is natural to assume that criminalization is a valid, if not preferred, solution to social dysfunction. Accordingly, progressives’ primary concerns about harms to minority victims takes place in a political-legal context in which criminalization is the technique of addressing harm. In turn, progressive criminal law theorizing manifests some deep internal tensions. …

An Analysis Of The Economic Costs Of Seeking The Death Penalty In Washington (Report), Peter A. Collins, Robert C. Boruchowitz, Matthew J. Hickman, Mark A. Larranaga

Faculty Articles

Professor Boruchowitz and colleagues published the results of a seven-month study into the costs of the death penalty in Washington state and has found a more than $1 million price break in cases where capital punishment is not sought.

Asymmetry As Fairness: Reversing A Peremptory Trend, Anna Roberts

Faculty Articles

A recent Ninth Circuit decision, prohibiting peremptory challenges on the basis of sexual orientation, reveals the continuing evolution of the Batson doctrine. Meanwhile, contrary judicial voices demand the abolition of the peremptory challenge. This article uncovers two phenomena that militate against abolition of the peremptory challenge, and in favor of allowing Batson’s evolution. First, the justifications for abolition apply asymmetrically to prosecution and defense, suggesting that an asymmetrical approach is more apt. Second, the states historically adopted an asymmetrical approach — unequal allocation of peremptory challenges to prosecution and defense — and yet many state legislatures have recently abandoned asymmetry, …

Re-Engaging Youth With The Protective Power Of Education, Daniel T. Satterberg, Violetta A. Stringer, Carla C. Lee

Seattle Journal for Social Justice

No abstract provided.

Instrumentalizing The Expressive: Transplanting Sentencing Circles Into The Canadian Criminal Trial, Toby S. Goldbach

All Faculty Publications

This Article examines reforms to criminal sentencing procedures in Canada, focusing on Aboriginal healing circles, which were incorporated as “sentencing circles” into the criminal trial. Using the lens of comparative law and legal transplants, this Article recounts the period of sentencing reform in Canada in the 1990s, when scholars, practitioners, and activists inquired into Aboriginal confrontation with the criminal justice system by comparing Euro-Canadian and Aboriginal justice values and principles. As a way to bridge the gap between vastly differing worldviews and approaches to justice, judges and Aboriginal justice advocates transplanted sentencing circles into the sentencing phase of the criminal …

Storming The Castle: Fernandez V. California And The Waning Warrant Requirement, Joshua Bornstein

Loyola of Los Angeles Law Review

No abstract provided.

Economic Migration Gone Wrong: Trafficking In Persons Through The Lens Of Gender, Labor, And Globalization, Dana Raigrodski

Articles

This Article argues for an economic analysis of human trafficking which primarily looks at globalization, trade liberalization, and labor migration as the core areas that need to be explored to advance the prevention of human trafficking.

Part I briefly examines the prevailing criminal law enforcement framework regarding human trafficking—both at the international level and in the United States—which stems out of viewing human trafficking as primarily a threat to global security and an underground industry of transnational criminal enterprises. It argues that while criminalization no doubt helped bring much needed attention (and resources) to human trafficking, the narrow criminal law …

Using The Dna Testing Of Arrestees To Reevaluate Fourth Amendment Doctrine, Steven P. Grossman

All Faculty Scholarship

With the advent of DNA testing, numerous issues have arisen with regard to obtaining and using evidence developed from such testing. As courts have come to regard DNA testing as a reliable method for linking some people to crimes and for exonerating others, these issues are especially significant. The federal government and most states have enacted statutes that permit or direct the testing of those convicted of at least certain crimes. Courts have almost universally approved such testing, rejecting arguments that obtaining and using such evidence violates the Fourth Amendment.

More recently governments have enacted laws permitting or directing the …

The War On Drugs And Prison Growth: Limited Importance, And Limited Legislative Options, John F. Pfaff

Faculty Scholarship

No abstract provided.

Decriminalizing Delinquency: The Effect Of Raising The Age Of Majority On Juvenile Recidivism, Charles E. Loeffler, Ben Grunwald

Faculty Scholarship

In the last decade, a number of states have expanded the jurisdiction of their juvenile courts by increasing the maximum age to 18. Proponents argue that these expansions reduce crime by increasing access to the beneficial features of the juvenile justice system. Critics counter that the expansions risk increasing crime by reducing deterrence. In 2010, Illinois raised the maximum age for juvenile court for offenders who commit a misdemeanor. By examining the effect of this law on juvenile offenders in Chicago, this paper provides the first empirical estimates of the consequences of recent legislative activity to raise the age of …

The Evidentiary Rules Of Engagement In The War Against Domestic Violence, Erin R. Collins

Law Faculty Publications

Our criminal justice system promises defendants a fair and just adjudication of guilt, regardless of the character of the alleged offense. Yet, from mandatory arrest to "no-drop" prosecution policies, the system's front-end response to domestic violence reflects the belief that it differs from other crimes in ways that permit or require the adaptation of criminal justice response mechanisms. Although scholars debate whether these differential responses are effective or normatively sound, the scholarship leaves untouched the presumption that, once the adjudicatory phase is underway, the system treats domestic violence offenses like any other crime.

This Article reveals that this presumption is …

Death As A Bargaining Chip: Plea Bargaining And The Future Of Virginia's Death Penalty, John G. Douglass

Law Faculty Publications

Virginia now averages less than a single death sentence each year, a far cry from its not-too-distant history as the second most active death penalty state in the nation. The numbers alone tempt us to forecast the death of Virginia's death penalty: a death by disuse. But those numbers leave much of the story untold. The plummeting number of death sentences is only the diminishing tip of a larger, more stable iceberg of capital case litigation. That iceberg is melting very slowly, if at all.

Race Matters In Jury Selection, Peter A. Joy

Scholarship@WashULaw

Whatever the lawyer fears, whether it is an issue of race in the case or unconscious biases in jurors that may affect how they decide the case, the lawyer must address the fears during jury selection. If the lawyer does not explore what the lawyer fears about the case during jury selection, the lawyer has failed to increase the odds that the jury will consider the client’s case fairly. If the defense lawyer does not mention race during jury selection when race matters in a case, racial bias can be a corrosive factor eating away at any chance of fairness …

Unequal Assistance Of Counsel, Peter A. Joy

Scholarship@WashULaw

There is now, and has always been, a double standard when it comes to the criminal justice system in the United States. The system is stacked against you if you are a person of color or are poor, and is doubly unjust if you are both a person of color and poor. The potential counterweight to such a system, a lawyer by one’s side, is unequal as well. In reality, the right to counsel is a right to the unequal assistance of counsel in the United States.

The unequal treatment based on the color of one’s skin is reflected by …

Changing Punishments For Property Offenses, To Change The Lives Of Women In Need, Amber Baylor

Faculty Scholarship

This year the Supreme Court denied certiorari to Cecelia Cathleen Rodriguez, a 61- year old woman from Oklahoma sentenced to life in prison. Her crime was theft of two purses from a department store. Ms. Rodriguez hoped that the Supreme Court would see fit to upend her conviction or declare her sentence excessive. Ms. Rodriguez's family reported to the state court that she has struggled with heroin addiction since the 1960s, leading to numerous arrests on petty charges. The majority of her extensive record was composed of petty thefts, drug possession, and other nonviolent offenses. The stolen bags in this, …

The ’73 Graft: Punishment, Political Economy, And The Genealogy Of Morals, Bernard E. Harcourt

Faculty Scholarship

In this essay, I explore the place of a genealogy of morals within the context of a history of political economy. More specifically, I investigate the types of moralization – of criminals and delinquents, of the disorderly, but also of political economic systems, of workers and managers, of rules and rule-breaking – that are necessary and integral to making a population accept new styles of political and economic governance, especially the punitive institutions that accompany modern political economies in the contemporary period.

The marriage of political economy and a genealogy of morals: this essay explores how the moralization of certain …

A Free Start: Community-Based Organizations As An Antidote To The Mass Incarceration Of Women Pretrial, Amber Baylor

Faculty Scholarship

In 1973, the feminist newsmagazine Off Our Backs featured a segment on women in jail awaiting trial in Washington, D.C. Many of the women faced minor charges, such as soliciting prostitution, but remained in detention because they could not afford to pay even very low amounts of monetary bail. The magazine interviewed Myrna Raeder, then a fellow at Georgetown, and other attorneys involved in a class action suit against D.C. corrections, who argued that low-income women were unjustly subjected to the punitive effects of pretrial detention, in violation of their due process rights. Raeder reported to the newsmagazine, “as a …

Leniency In Chinese Criminal Law? Everyday Justice In Henan, Benjamin L. Liebman

Faculty Scholarship

This Article examines one year of publicly available criminal judgments from a basic-level rural county court and an intermediate court in Henan Province in order to better understand trends in routine criminal adjudication in China. I present an account of ordinary criminal justice in China that is both familiar and striking: a system that treats serious crimes, in particular those affecting State interests, harshly, while at the same time acting leniently in routine cases. Most significantly, examination of more than five hundred court decisions shows the vital role that settlement plays in criminal cases in China today. Defendants who agree …

The Limits Of Moral Argument: Reason And Conviction In Tadros' Philosophy Of Punishment (With Response By Victor Tadros), Eric Blumenson, Victor Tadros

Suffolk University Law School Faculty Works

For generations, philosophers of punishment have sought to revise or combine established theories of punishment in a way that could reconcile the utilitarian aims of punishment with the demands of deontological justice. Victor Tadros’ recent work addresses the same problem, but answers it with an entirely original theory of punishment based on the duties criminals acquire by committing their crimes. The unexpected appearance of a new rationale for punishment has already inspired a robust dialogue between Tadros and his critics on many of the individual claims that, linked together, comprise his argument. This critique focuses instead on Tadros’ theory as …

Prosecutorial Discretion And Environmental Crime, David M. Uhlmann

Articles

In January 1991, just four weeks after joining the Justice Department’sEnvironmental Crimes Section as an entry-level attorney, I traveled to NewOrleans to attend an environmental enforcement conference. The conferencewas attended by hundreds of criminal prosecutors and civil attorneys from theJustice Department, as well as enforcement officials from the EnvironmentalProtection Agency (“EPA”). It was a propitious time for environmental protec-tion efforts in the United States. Less than two months earlier, President GeorgeH. W. Bush had signed the Clean Air Act Amendments of 1990, culminating aremarkable twenty-year period that created the modern environmental law sys-tem in the United States. My new office, …