Criminal Procedure Commons^™

A Few Reflections On The Model Penal Code Commentaries, Kent Greenawalt

Faculty Scholarship

When Deborah Denno invited me to participate in the panel of the Association of American Law Schools discussing possible revision of the Model Penal Code, I initially declined, not having taught criminal law for more than two decades and having written only sporadically in the field. Professor Denno urged that as one involved in the revision of the Commentary, I might nonetheless have something to contribute. In these reflections, as at the session, I have mainly restricted myself to the relationship between the final commentary and the Code itself.

As Gerard Lynch's essay explains, the Model Penal Code was the …

Criminal Defenders And Community Justice: The Drug Court Example, William H. Simon

Faculty Scholarship

The Community Justice idea and its core institution – the Community Court – is an ambitious innovation intended to generate new solutions and practices. It thus inevitably calls for adaptation of the established roles associated with the court system, and especially the criminal justice system. It asks practitioners to learn new skills, to accept new conventions, and to participate in the elaboration of a rapidly evolving experiment.

It is thus not surprising that many lawyers are anxious about the system. It remains an interesting question, however, whether their anxiety represents something more than the discomfort that change and challenge typically …

Prosecutors And Their Agents, Agents And Their Prosecutors, Daniel C. Richman

Faculty Scholarship

This Article seeks to describe the dynamics of interaction between federal prosecutors and federal enforcement agents, and to suggest how these dynamics affect the exercise of enforcement discretion. After considering the virtues and pitfalls of both hierarchical and coordinate organizational modes, the Article offers a normative model that views prosecutors and agents as members of a "working group," with each side monitoring the other. It concludes by exploring how this model can be furthered or frustrated with various procedural and structural changes.

A Broken System, Part Ii: Why There Is So Much Error In Capital Cases And What Can Be Done About It, James S. Liebman, Jeffrey A. Fagan, Andrew Gelman, Valerie West, Garth Davies, Alexander Kiss

Faculty Scholarship

There is growing awareness that serious, reversible error permeates America’s death penalty system, putting innocent lives at risk, heightening the suffering of victims, leaving killers at large, wasting tax dollars, and failing citizens, the courts and the justice system.

Our June 2000 Report shows how often mistakes occur and how serious it is: 68% of all death verdicts imposed and fully reviewed during the 1973-1995 study period were reversed by courts due to serious errors.

Analyses presented for the first time here reveal that 76% of the reversals at the two appeal stages where data are available for study were …

Rates Of Reversible Error And The Risk Of Wrongful Execution, James S. Liebman

Faculty Scholarship

Innocent fatalities are a concern of all social activity with a capacity to kill. This is especially true when the social activity is the death penalty since an innocent person's execution is not simply a tragic collateral consequence of activity with a non-fatal objective. Instead, the taking of life is the goal of the enterprise, and the killing is the intended act of the state.

There is another difference between accidental fatalities in other social activities and those that occur when the capital system miscarries. Typically, the former fatalities are easy to spot and quantify; the latter are not. Precisely …

This Will Hurt Me More Than It Hurts You: Social And Legal Consequences Of Criminalizing Delinquency, Jeffrey Fagan

Faculty Scholarship

What happens to adolescents once placed in the criminal justice system and the potential violations of human rights that ensue is the focus of this essay. The pace of change, the severity of the new laws, the potential for unintended negative outcomes, and the empirical reality of adult punishment of juvenile offenders creates new urgency to these questions. Unfortunately, there has been little analysis of the comparative effects of statutes and administrative laws that relocate juvenile offenders to the adult court, and there has been virtually no research on the efficacy, impact and consequences of sentencing juveniles as adults. There …

Opting For Real Death Penalty Reform, James S. Liebman

Faculty Scholarship

The capital punishment system in the United States is broken. Studies reveal growing delays nationwide between death sentences and executions and inexcusably high rates of reversals and retrials of capital verdicts. The current system persistently malfuinctions because it rewards trial actors, such as police, prosecutors, and trial judges, for imposing death sentences, but it does not force them either to avoid making mistakes or to bear the cost of mistakes that are made during the process. Nor is there any adversarial discipline imposed at the trial level because capital defendants usually receive appointed counsel who either do not have experience …

New Death Penalty Debate: What's Dna Got To Do With It, James S. Liebman

Faculty Scholarship

The nation is engaged in the most intensive discussion of the death penalty in decades. Temporary moratoria on executions are effectively in place in Illinois and Maryland, and during the winter 2001 legislative cycle legislation to adopt those pauses elsewhere cleared committees or one or more houses of the legislature, not only in Connecticut (passed the Senate Judiciary Committee) and Maryland (where it passed the entire House, and the Senate Judiciary Committee) but in Nevada (passed the Senate) and Texas (passed committees in both Houses). In the last year, abolition bills have passed or come within a few votes of …

Look Who's Extrapolating: A Reply To Hoffmann, Valerie West, Jeffery Fagan, James S. Liebman

Faculty Scholarship

In late March, a reporter called with news of a pirated copy of Professor Joseph Hoffinann's soon-to-be-published "attack" on our study, A Broken System: Error Rates in Capital Cases, 1973-1995. Did we care to comment? Obtaining our own copy revealed that Professor Hoffmann's fusillade missed its mark (he misstates what we did) and boomeranged (his mischaracterizations of our analysis accurately describe his own). We do care to comment, and Hoffmann and the Indiana Law Journal have graciously let us do so.

Hoffmann's main claim is that we "extrapolated" the 68% rate of reversible error we reported for capital verdicts …

An "Effective Death Penalty"? Aedpa And Error Detection In Capital Cases, James S. Liebman

Faculty Scholarship

On June 11, 2001, the United States of America executed Timothy McVeigh. Dwarfed among the many unspeakable evils that Mr. McVeigh wrought is a speakable one I will address here, namely, the so-called Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA").

Abbreviated, AEDPA's political history is as follows: In November 1994, the "Gingrich Congress" was elected on its Contract with America platform. One of the planks of that platform – one of the few that actually ended up passing Congress – was the so-called "Effective Death Penalty Act." That proposal had little to do with the death penalty and, …

Death Is The Whole Ball Game, Jeffrey A. Fagan, James S. Liebman, Valerie West

Faculty Scholarship

In Capital Appeals Revisited and The Meaning of Capital Appeals, Barry Latzer and James N.G. Cauthen argue that a study of capital appeals should focus only on overturned findings of guilt, and complain that in A Broken System we examine all overturned capital verdicts. But the question they want studied cannot provide an accurate evaluation of a system of capital punishment. By proposing to count only "conviction" error and not "sentence" error, Latzer and Cauthen ignore that if a death sentence is overturned, the case is no longer capital and the system of capital punishment has failed to achieve its …

Dignity And Victimhood, Kent Greenawalt

Faculty Scholarship

If Sandy Kadish has reminded us of limitations of consequentialist approaches to the criminal law and has proposed persuasive resolutions of issues that deontological perspectives reveal, Meir Dan-Cohen has jarred us to rethink fundamental premises about rules in the criminal justice system. His Essay is an example of his ingenuity for unsettling understandings. The Essay reads easily and seems deceptively straightforward, but it is rich in nuance and its themes are complex. This Response identifies the various themes and evaluates their plausibility. I take Professor Dan-Cohen's Essay as a preliminary exploration of a major subject, and I have responded accordingly, …

Death Matters – A Reply To Latzer And Cauthen, James S. Liebman, Jeffrey A. Fagan, Valerie West

Faculty Scholarship

The legal treatment of capital punishment in the United States "rests squarely on the predicate that the penalty of death is qualitatively different from a sentence of imprisonment, however long. Death, in its finality, differs more from life imprisonment than a 100-year prison term differs from one of only a year or two. This predicate is among "the evolving standards of decency that mark the progress of a maturing society" and determine whether a punishment is "cruel and unusual" in violation of the Constitution. Because "'[f]rom the point of view of the defendant, [death] is different in both its severity …

Transparent Adjudication And Social Science Research In Constitutional Criminal Procedure, Tracey L. Meares, Bernard Harcourt

Faculty Scholarship

The October 1999 Term was a year of consolidation in the law of police investigations in constitutional criminal procedure. In four short and compact opinions – three supported by sizeable majorities and three written by the Chief Justice – the Supreme Court synthesized and consolidated its criminal procedure jurisprudence, and offered clear guidance to law enforcement officers and private citizens alike. Miranda warnings are required by the Fifth Amendment, and the police must continue to "Mirandize" citizens before conducting any custodial interrogations. Reasonable suspicion under the Fourth Amendment calls for a totality-of-the-circumstances test, and a citizen's flight from the police …

A Broken System: Error Rates In Capital Cases, 1973-1995, James S. Liebman, Jeffrey Fagan, Valerie West

Faculty Scholarship

There is a growing bipartisan consensus that flaws in America's death-penalty system have reached crisis proportions. Many fear that capital trials put people on death row who don't belong there. Others say capital appeals take too long. This report – the first statistical study ever undertaken of modern American capital appeals (4,578 of them in state capital cases between 1973 and 1995) – suggests that both claims are correct.

Capital sentences do spend a long time under judicial review. As this study documents, however, judicial review takes so long precisely because American capital sentences are so persistently and systematically fraught …

The Overproduction Of Death, James S. Liebman

Faculty Scholarship

In this Article, Professor Liebman concludes that trial actors have strong incentives to – and do – overproduce death sentences, condemning to death men and women who, under state substantive law, do not deserve that penalty. Because trial-level procedural rights do not weaken these incentives or constrain the overproduction that results, it falls to post-trial procedural review – which is ill-suited to the task and fails to feed back needed information to the trial level – to identify the many substantive mistakes made at capital trials. This system is difficult to reform because it benefits both pro-death penalty trial actors …

Capital Attrition: Error Rates In Capital Cases, 1973-1995, James S. Liebman, Jeffery Fagan, Valerie West, Jonathan Lloyd

Faculty Scholarship

Americans seem to be of two minds about the death penalty. In the last several years, the overall number of executions has risen steeply, reaching a fifty year high this year. Although two-thirds of the public support the penalty, this figure represents a sharp decline from the four-fifths of the population that endorsed the death penalty only six years ago, leaving support for capital punishment at a twenty year low. When life without parole is offered as an alternative, support for the penalty drops even more – often below a majority. Grants of executive clemency reached a twenty year high …

Drug Treatment Courts And Emergent Experimentalist Government, Michael C. Dorf, Charles F. Sabel

Faculty Scholarship

Despite the continuing "war on drugs," the last decade has witnessed the creation and nationwide spread of a remarkable set of institutions, drug treatment courts. In drug treatment court, a criminal defendant pleads guilty or otherwise accepts responsibility for a charged offense and accepts placement in a court-mandated program of drug treatment. The judge and court personnel closely monitor the defendant's performance in the program and the program's capacity to serve the mandated client. The federal government and national associations in turn monitor the local drug treatment courts and disseminate successful practices. The ensemble of institutions, monitoring, and pooling exemplifies …

Beyond The Independent Counsel: Evaluating The Options, Thomas W. Merrill

Faculty Scholarship

The Independent Counsel Act expires on June 30, 1999. Should it be extended? Extended with modifications? Radically reformed? Or should it be allowed to sunset with nothing put in its place? To answer these questions, we need to address some more fundamental questions: (1) Do we truly need an independent office to investigate alleged wrongdoing by high-ranking officers of the executive branch? (2) If so, what are the options for the organizational structure of such an office? (3) By what criteria should the different institutional options be evaluated? (4) Under these criteria, which option represents the best, or perhaps more …

Foreword, Elizabeth S. Scott

Faculty Scholarship

In November 1998, the interdisciplinary Center for Children, families and the Law at the University of Virginia sponsored a conference on Youth Violence and Juvenile Justice Reform. The conference brought together an extraordinary group of experts from the academic disciplines of law, criminology and psychology. Before an audience made up of researchers, students, policymakers, and practitioners in the field of juvenile justice, these experts analyzed legal policy toward juvenile crime from a variety of disciplinary and methodological perspectives. The articles in this important symposium issue of the Virginia Journal of Social Policy & the Law are based on the papers …

Disenfranchisement As Punishment: Reflections On The Racial Uses Of Infamia, George P. Fletcher

Faculty Scholarship

The practice of disenfranchising felons, though decreasing, is still widespread. In this Article, Professor George Fletcher reflects on the use of disenfranchisement as punishment, the lack of a convincing theoretical justification for it, and its disproportionate impact on the African.American community. Fletcher presents a number of powerful arguments against the constitutionality of the practice, but he emphasizes that there is a deeper problem with disenfranchisement as punishment: It reinforces the branding of felons as an "untouchable" class and thus helps to prevent their effective reintegration into our society.

The Fall And Rise Of Criminal Theory, George P. Fletcher

Faculty Scholarship

These are good times – at least for the theory of criminal law. This special issue of Buffalo Criminal Law Review testifies to a remarkable surge of interest among younger scholars in perennial questions: Why should we punish offenders? Do we require a human act as a precondition for liability and what is its structure? What does it mean for someone to be guilty or culpable for committing an offense? How do we avoid contradictions in structuring the criteria of liability? The time has come for renewed intensity in pondering and discussing these basic issues.

The contributions of this symposium …

Truth In Codification, George P. Fletcher

Faculty Scholarship

Some men think that the earth is round, others think it flat; it is a matter capable of question. But if it is flat, will the King's command make it round? And if it is round, will the King's command flatten it?

These are the words of Thomas More as interpreted by Robert Bolt in his play A Man for All Seasons. More invokes the issue of scientific truth to question Parliament's authority to determine whether King Henry VIII should be recognized as the head of the Church of England. The point is well taken. When the issue is scientific …

Dogmas Of The Model Penal Code, George P. Fletcher

Faculty Scholarship

The Model Penal Code has become the central document of American criminal justice. It has had some effect on law reform in over 35 states. More significantly, it provides the lingua franca of most people who teach criminal law in the United States. Most academics think that the precise definitions of culpability states in section 2.02(2) are really neat, and they applaud the liberal rules that restrict the use of strict liability to administrative fines. Indeed, all things considered, for a code drafted with almost total indifference to what might be learned from European models, the Model Penal Code is …

Reflecting On The Subject: A Critique Of The Social Influence Conception Of Deterrence, The Broken Windows Theory, And Order-Maintenance Policing New York Style, Bernard Harcourt

Faculty Scholarship

In 1993, New York City began implementing the quality-of-life initiative, an order-maintenance policing strategy targeting minor misdemeanor offenses like turnstile jumping, aggressive panhandling, and public drinking. The policing initiative is premised on the broken windows theory of deterrence, namely the hypothesis that minor physical and social disorder, if left unattended in a neighborhood, causes serious crime. New York City's new policing strategy has met with overwhelming support in the press and among public officials, policymakers, sociologists, criminologists and political scientists. The media describe the "famous" Broken Windows essay as "the bible of policing" and "the blueprint for community policing." Order-maintenance …

Federal Criminal Law, Congressional Delegation, And Enforcement Discretion, Daniel Richman

Faculty Scholarship

Much of the literature on federal criminal law bemoans the extent to which Congress has abdicated its legislative responsibilities and left enforcement decisions to prosecutorial discretion. Many critics have sought to compensate for the absence of appropriate legislative specificity by proposing other devices for limiting prosecutorial power, many of which would centralize enforcer authority. Guided by recent work in positive political theory, Professor Daniel Richman argues that such claims of legislative abdication overlook the attention that Congress has given to the organization and activities of the federal enforcement bureaucracy. By showing the extent to which Congress balances concern with enforcer …

Towards A Model Penal Code, Second (Federal?): The Challenge Of The Special Part, Gerard E. Lynch

Faculty Scholarship

The Model Penal Code is among the most successful academic law reform projects ever attempted. In the first two decades after its completion in 1962, more than two-thirds of the states undertook to enact new codifications of their criminal law, and virtually all of those used the Model Penal Code as a starting point. The Model Penal Code was influential in a variety of different ways. First, the very notion of a systematic codification of criminal law received a dramatic boost from the Model Penal Code. Apart from the degree to which any particular state recodification resembled the Model Penal …

Our Administrative System Of Criminal Justice, Gerard E. Lynch

Faculty Scholarship

Bill Tendy was already a legend among federal prosecutors when I first served as an Assistant United States Attorney for the Southern District of New York in the early 1980s. To us youngsters, Bill even then seemed a survivor from another era, when prosecutors really did resemble the tough-talking Hollywood DAs played by actors like Brian Donleavy – while we felt more like insecure young lawyers who should be played by Michael J. Fox or Calista Flockhart.

Partly, of course, this was just a function of age and experience; hard as it was to imagine, there must have been a …

The Evolution Of Adolescence: A Developmental Perspective On Juvenile Justice Reform, Elizabeth S. Scott, Thomas Grisso

Faculty Scholarship

The legal response to juvenile crime is undergoing revolutionary change, and its ultimate shape is uncertain. The traditional juvenile court, grounded in optimism about the potential for rehabilitation of young offenders, has long been the target of criticism, and even its defenders have been forced to acknowledge that it has failed to meet its objectives. Beginning in the late 1960s, when the Supreme Court introduced procedural regularity to delinquency proceedings in In re Gault, courts and legislatures began to slowly chip away at the foundations of the juvenile justice system. Recent developments have accelerated and intensified that process, as …

The Role Of Criminal Law In Policing Corporate Misconduct, Gerard E. Lynch

Faculty Scholarship

In the early 1990s, I spent a couple of years as Chief of the Criminal Division in the Office of the U.S. Attorney for the Southern District of New York. One of my principal responsibilities was to hear "appeals" from defense lawyers, usually, although not exclusively, in white collar crime cases. These lawyers felt that their clients should not be indicted, or that the plea offer they had received from the prosecutor in charge of the case was unduly severe. Sometimes their arguments were essentially factual contentions that the government had the wrong take on the evidence – that the …