Criminal Law Commons^™

Foreword: The Death Penalty In Decline: From Colonial America To The Present, John Bessler

All Faculty Scholarship

This Article traces the history of capital punishment in America. It describes the death penalty's curtailment in colonial Pennsylvania by William Penn, and the substantial influence of the Italian philosopher Cesare Beccaria -- the first Enlightenment thinker to advocate the abolition of executions -- on the Founding Fathers' views. The Article also describes the transition away from "sanguinary" laws and punishments toward the "penitentiary system" and highlights the U.S. penal system's abandonment of non-lethal corporal punishments.

Book Review: American Jericho: A Book Review Of The Hanging Judge By Michael A. Ponsor, Giovanna Shay

Faculty Scholarship

No abstract provided.

Give Me Internet Or Give Me Death: Analyzing The Constitutionality Of Internet Restrictions As A Condition Of Supervised Release For Child Pornography Offenders, Laura Tatelman

Cardozo Journal of Equal Rights & Social Justice

The note argues that blanket bans on internet and internet-capable devices as a condition of supervised release for child pornography offenders are unconstitutional under the doctrine of unconstitutional conditions. These bans infringe on fundamental liberties such as speech, association, and access to information, disproportionately affecting offenders’ ability to reintegrate into society. The analysis advocates for a balanced approach that prioritizes public safety while respecting constitutional rights, suggesting alternatives like supervised release rather than outright internet prohibition.

Thinking Outside The Box: Limiting The Collection Of Rape Kit Evidence In Acquaintance Rape Trials, Taylor Gamble

Cardozo Journal of Equal Rights & Social Justice

The note argues that limiting the collection of rape kit evidence in acquaintance rape cases could strike a balance between reducing victim trauma, conserving resources, and maintaining the integrity of the justice system. While DNA evidence is crucial in stranger rape cases, its utility in acquaintance rapes is limited since the central issue is often consent rather than identity. The analysis weighs the benefits of minimizing invasive exams and protecting victim privacy against the potential loss of probative evidence, ultimately suggesting that the benefits of selective collection outweigh the harms.

Sign Up Or Sign Off: Asia’S Reluctant Engagement With The International Criminal Court, Mark Findlay

Research Collection Yong Pung How School Of Law

The International Criminal Court argues that there is a need to achieve universal ratification so that the majority of mankind will no longer remain outside the protection of the ICC. In the Asia/Pacific region there is a relatively low accession rate of nation states to the Rome Statute. This paper proposes a taxonomy of resistance to ratification in the region, recognising that in speculating on the reasons for resistance to the ratification of international criminal justice, local to the global across Asia and the Pacific, there is a risk in both over emphasising cultural and political difference while at the …

The Domestic And International Enforcement Of The Oecd Anti-Bribery Convention, Rachel Brewster

Faculty Scholarship

International corruption law is a growing, if understudied, area of international economic law. This Article examines two aspects of governments' enforcement of the OECD's Anti-Bribery Convention. The first aspect is the member state's efforts to enforce its own national legislation prohibiting foreign corruption within its territory and with regards to its nationals doing business abroad. The OECD Treaty's obligation concerning member states' enforcement of their own national legislation is somewhat ambiguous. While the obligation to pass particular national legislation is quite clear and specific, the treaty does not specify what resources that a state must dedicate to internally enforcing these …

Law And Neuroscience: Recommendations Submitted To The President's Bioethics Commission, Owen D. Jones, Richard J. Bonnie, Bj Casey, Andre Davis, David L. Faigman, Morris B. Hoffman, Read Montague, Stephen J. Morse, Marcus E. Raichle, Jennifer A. Richeson, Elizabeth S. Scott, Laurence Steinberg, Kim Taylor-Thompson, Anthony Wagner, Gideon Yaffe

Faculty Scholarship

It has become increasingly clear that implications for criminal justice – both negative and positive – emerge from the rapid, important, and challenging developments in cognitive neuroscience, the study of how the brain thinks. Two examples will illustrate.

First, lawyers are ever more frequently bringing neuroscientific evidence into the courtroom, often in the forms of testimony about, and graphic images of, human brains. This trend has produced many new challenges for judges as they attempt to provide fair rulings on the admissibility of such technical evidence, consider its proper interpretation, and assess whether the probative value of such testimony may …

Framing The Prosecution, Daniel C. Richman

Faculty Scholarship

The enormous value of Dan Simon’s In Doubt lies not just in its nuanced exploration of the challenges to accurate criminal factfinding, but also in its challenge to us to rethink trials themselves. Even as we endeavor to give criminal defendants the means and license to raise reasonable doubts, we need to think more about when and how those doubts can be allayed. Just because most jurisdictions have not come out of the first round of play – the one in which defendants get the tools to poke holes in the cases against them – does not mean it is …

Beccaria's On Crimes And Punishments: A Mirror On The History Of The Foundations Of Modern Criminal Law, Bernard E. Harcourt

Faculty Scholarship

Beccaria’s treatise On Crimes and Punishments (1764) has become a placeholder for the classical school of thought in criminology, for deterrence-based public policy, for death penalty abolitionism, and for liberal ideals of legality and the rule of law. A source of inspiration for Bentham and Blackstone, an object of praise for Voltaire and the Philosophes, a target of pointed critiques by Kant and Hegel, the subject of a genealogy by Foucault, the object of derision by the Physiocrats, rehabilitated and appropriated by the Chicago School of law and economics — these ricochets and reflections on Beccaria’s treatise reveal multiple dimensions …

Dusty Order: Law Enforcement And Participant Cooperation At Burning Man, Manuel A. Gomez

Faculty Books

Media depictions of Burning Man focus on the picturesque and eccentric appearance of the weeklong affair. The event is sometimes misportrayed as a lawless environment where participants are encouraged to engage in rowdy behavior. Most carnivalesque events offer an escape from reality and are generally thought to enable unruly conduct. Despite stereotypes, Burning Man is a different beast. Not only is the crime rate in Black Rock City lower than any other city of comparable size, but Burners show a high level of cooperative and law abiding behavior that helps maintain the social order without depending on official means of …

Rate Of False Conviction Of Criminal Defendants Who Are Sentenced To Death, Samuel R. Gross, Barbara O'Brien, Chen Hu, Edward H. Kennedy

Articles

The rate of erroneous conviction of innocent criminal defendants is often described as not merely unknown but unknowable. There is no systematic method to determine the accuracy of a criminal conviction; if there were, these errors would not occur in the first place. As a result, very few false convictions are ever discovered, and those that are discovered are not representative of the group as a whole. In the United States, however, a high proportion of false convictions that do come to light and produce exonerations are concentrated among the tiny minority of cases in which defendants are sentenced to …

Racial Profiling As Collective Definition, Trevor George Gardner

Scholarship@WashULaw

Economists and other interested academics have committed significant time and effort to developing a set of circumstances under which an intelligent and circumspect form of racial profiling can serve as an effective tool in crime finding–the specific objective of finding criminal activity afoot. In turn, anti-profiling advocates tend to focus on the immediate efficacy of the practice, the morality of the practice, and/or the legality of the practice. However, the tenor of this opposition invites racial profiling proponents to develop more surgical profiling techniques to employ in crime finding. In the article, I review the literature on group distinction to …

Inmates For Rent, Sovereignty For Sale: The Global Prison Market, Benjamin Levin

Scholarship@WashULaw

In 2009, Belgium and the Netherlands announced a deal to send approximately 500 Belgian inmates to Dutch prisons, in exchange for an annual payment of £26 million. The arrangement was unprecedented, but justified as beneficial to both nations: Belgium had too many prisoners and not enough prisons, whereas the Netherlands had too many prisons and not enough prisoners. The deal has yet to be replicated, nor has it triggered sustained criticism or received significant scholarly treatment. This Article aims to fill this void by examining the exchange and its possible implications for a global market in prisoners and prison space. …

Systemic Barriers To Effective Assistance Of Counsel In Plea Bargaining, Peter A. Joy, Rodney J. Uphoff

Scholarship@WashULaw

In a trio of recent cases, Padilla v. Kentucky, Missouri v. Frye, and Lafler v. Cooper, the U.S. Supreme Court has focused its attention on defense counsel's pivotal role during the plea bargaining process . At the same time that the Court has signaled its willingness to consider ineffective assistance of counsel claims at the plea stage, prosecutors are increasingly requiring defendants to sign waivers that include waiving all constitutional and procedural errors, even unknown ineffective assistance of counsel claims such as those that proved successful in Padilla and Frye. Had Jose Padilla and Galin Frye been forced to sign …

The Time Has Come For A Restatement Of Child Sex Abuse, Marci A. Hamilton

Articles

No abstract provided.

Fifteen Years Of Supreme Court Criminal Procedure Work: Three Constitutional Brushes, Daniel C. Richman

Faculty Scholarship

This essay – written in connection with a French National Research Agency project on “Neo or Retro Constitutionalisms” – is an effort to pull together the last fifteen years of Supreme Court criminal procedure cases expanding constitutional protections. It identifies three different styles: thin and clear doctrinal lines on miniature doctrinal canvases that have only passing connections to criminal justice realities; episodic and self-limiting engagements with a potentially larger regulatory space; and a grand style that hints at sweeping structural ambitions but collaborates with other regulatory authorities. Readers undoubtedly can come up with more than three styles. But, in any …

The Language Of Mens Rea, Kenneth Simons, Matthew R. Ginther, Francis X. Shen, Richard J. Bonnie

Faculty Scholarship

This article answers two key questions. First: Do jurors understand and apply the criminal mental state categories the way that the widely influential Model Penal Code (MPC) assumes? Second: If not, what can be done about it?

Hiv, Violence Against Women, And Criminal Law Interventions, Aziza Ahmed

Faculty Scholarship

The growing calls for the “securitization of body and property,”[ii] documented by Jonathan Simon in his book Governing Through Crime, illustrates a deep tension in our understanding of the role of criminal law as a tool for societal transformation.[iii] For some, including communities of color, the criminal legal system is a place where inequality flourishes;[iv] for others, including those feminists who have support criminal law interventions, it has become a tool to realize equality.[v] The Trafficking Victims Protection Act, reauthorized in 2013 as an amendment to the Violence Against Women Act (VAWA),[vi] relies heavily on the criminal law to obtain …

“Exploitation Creep” And Development: A Response To Janie Chuang, Aziza Ahmed

Faculty Scholarship

In her article Exploitation Creep and the Unmaking of Human Trafficking Law, Janie Chuang insightfully describes transformations in the discourse on trafficking as it shifted from sex trafficking to human trafficking, and as human trafficking came to be understood as forced labor, and now modern day slavery. With each of these transformations, the United States government, self-anointed “global sheriff” of anti-trafficking efforts, deepened its emphasis on a prosecution-oriented strategy focused on individual perpetrator accountability. As an alternative trajectory, Chuang identifies and convincingly argues for a labor-rights approach that takes into consideration the structural causes of exploitation in the labor market, …

Evidence-Based Sentencing And The Scientific Rationalization Of Discrimination, Sonja B. Starr

Articles

This Article critiques, on legal and empirical grounds, the growing trend of basing criminal sentences on actuarial recidivism risk prediction instruments that include demographic and socioeconomic variables. I argue that this practice violates the Equal Protection Clause and is bad policy: an explicit embrace of otherwise- condemned discrimination, sanitized by scientific language. To demonstrate that this practice raises serious constitutional concerns, I comprehensively review the relevant case law, much of which has been ignored by existing literature. To demonstrate that the policy is not justified by countervailing state interests, I review the empirical evidence underlying the instruments. I show that …

Prosecutorial Discretion And Environmental Crime, David M. Uhlmann

Articles

Prosecutorial discretion exists throughout the criminal justice system but plays a particularly significant role for environmental crime. Congress made few distinctions under the environmental laws between acts that could result in criminal, civil, or administrative enforcement. As a result, there has been uncertainty about which environmental violations will result in criminal enforcement and persistent claims about the overcriminalization of environmental violations. To address these concerns — and to delineate an appropriate role for criminal enforcement in the environmental regulatory scheme — I have proposed that prosecutors should reserve criminal enforcement for violations that involve one or more of the following …

Live And Let Die: Puerto Rico — The Unincorporated Jewel Of The Caribbean, Emmanuel Hiram Arnaud

Faculty Scholarship

Puerto Rico is a commonwealth of the United States. However, the ambiguous meaning of that phrase has allowed for inconsistent treatment of Puerto Rico by the Supreme Court of the United States. This short article briefly tackles the manner in which the federal government most recently applied the federal death penalty to Puerto Rico despite the island's constitutional ban against capital punishment.

Democracy Enhancement In Criminal Law And Procedure, Janet Moore

Utah Law Review

There is a democracy deficit at the intersection of crime, race, and poverty. The causes and consequences of hyperincarceration disproportionately affect those least likely to mount an effective oppositional politics: poor people and people of color. This Article breaks new ground by arguing that the democracy deficit calls for a democracy-enhancing theory of criminal law and procedure that modifies traditional justifications of retributivism and deterrence by prioritizing self-governance. Part I contextualizes the argument within cyclical retrenchments in movements for racial and economic justice. Part II sketches the contours of a democracy-enhancing theory. Parts III and IV turn that theoretical lens …

The New Prosecutor’S Dilemma: Prosecutorial Ethics And The Evaluation Of Actual Innocence, Dana Carver Boehm

Utah Law Review

Buoyed by advances in forensic science, the number of postconviction exonerations has significantly risen in the American criminal justice system over the last twenty years. The ethical obligations of prosecutors faced with such claims, however, have not kept pace. Most efforts within district and U.S. attorneys’ offices have been incremental at best, and even those few prosecutors’ offices with more robust “conviction integrity units”—units that affirmatively investigate claims of actual innocence and seek to mitigate the likelihood of wrongful convictions in the first place—suffer from various structural defects. Often a prosecutor’s default posture when faced with a claim of actual …

Criminalizing The Transmission Of Hiv: Consent, Disclosure, And Online Dating, Alexandra Mccallum

Utah Law Review

Ever since Human Immunodeficiency Virus (HIV) was first recognized as a widespread public health problem, policymakers and legal scholars have considered how criminal law should be used to influence the sexual behavior of people with HIV. Surely, HIV is a problem that affects the general health, safety, and welfare of citizens. Thus, as most cases of HIV are transmitted through sexual conduct, states can regulate this conduct pursuant to their police powers. Generally, states that criminalize the transmission of HIV through sexual conduct provide an exception for HIV-positive individuals who disclose their status and obtain consent5 from their partners. However, …

Justice Policy Reform For High-Risk Juveniles: Using Science To Achieve Large-Scale Crime Reduction, Jennifer L. Skeem, Elizabeth S. Scott, Edward Mulvey

Faculty Scholarship

After a distinctly punitive era, a period of remarkable reform in juvenile crime regulation has begun. Practical urgency has fueled interest in both crime reduction and research on the prediction and malleability of criminal behavior. In this rapidly changing context, high-risk youth – the small proportion of the population where crime is concentrated – present a conundrum. Research indicates that these are precisely the individuals to intensively treat to maximize crime reduction, but there are both real and imagined barriers to doing so. Institutional placement or criminal court processing can exclude these youths from interventions that would better protect public …

Export Controls: A Contemporary History, Bert Chapman

Libraries Faculty and Staff Presentations

Provides highlights of my recently published book Export Controls: A Contemporary History. Describes the roles played by multiple U.S. Government agencies and congressional oversight committees in this policymaking arena including the Commerce, Defense, State, and Treasury Departments. It also reviews the roles played by international government organizations such as the Missile Technology Control Regime, export oriented businesses, and research intensive universities.

Optimal Warning Strategies: Punishment Ought Not To Be Inflicted Where The Penal Provision Is Not Properly Conveyed, Murat C. Mungan

Scholarly Publications

Law enforcers frequently issue warnings, as opposed to sanctions, when they detect first-time offenders. However, virtually all of the law and economics literature dealing with optimal penalty schemes for repeat offenders suggest that issuing warnings is a sub-optimal practice. Another observed phenomenon is the joint use of warnings and sanctions in law enforcement: person A may receive a sanction, whereas person B is only warned for committing the same offense. This situation can be explained through the use of hybrid warning strategies, a concept not yet formalized in the law enforcement literature, where law enforcers issue warnings to x% …

Casual Ostracism: Jury Exclusion On The Basis Of Criminal Convictions, Anna Roberts

Faculty Scholarship

No abstract provided.

A Good Name: Applying Regulatory Takings Analysis To Reputation Damage Caused By Criminal History, Jamila Jefferson-Jones

West Virginia Law Review

No abstract provided.