Criminal Procedure Commons^™

Guns And Drugs, Benjamin Levin

Publications

This Article argues that the increasingly prevalent critiques of the War on Drugs apply to other areas of criminal law. To highlight the broader relevance of these critiques, this Article uses as its test case the criminal regulation of gun possession. This Article identifies and distills three lines of drug war criticism and argues that they apply to possessory gun crimes in much the same way that they apply to drug crimes. Specifically, this Article focuses on: (1) race- and class-based critiques; (2) concerns about police and prosecutorial power; and (3) worries about the social and economic costs of mass …

Values And Assumptions In Criminal Adjudication, Benjamin Levin

Publications

This Response to Andrew Manuel Crespo's Systemic Facts: Toward Institutional Awareness in Criminal Courts proceeds in two Parts. In Part I, I argue that Crespo presents a compelling case for the importance of systemic factfinding to the task of criminal court judges. If, as a range of scholars has argued, criminal courts are increasingly serving a quasi-administrative function, then shouldn’t they at least be administrating accurately? Systemic Facts provides a novel account of how — with comparatively little institutional reform — courts might begin to serve as more effective administrators. However, in Part II, I also argue that Crespo’s account …

Revisiting The Mansions And Gatehouses Of Criminal Procedure: Reflections On Yale Kamisar's Famous Essay, William T. Pizzi

Publications

In 1965, Yale Kamisar published a now-famous essay entitled, Equal Justice in the Gatehouses and Mansions of American Criminal Procedure: From Powell to Gideon, from Escobedo to... to make his case that the Court needed to take action to protect citizens in interrogation rooms, Kamisar used the powerful metaphors of the gatehouse and the mansion to contrast the treatment received in interrogation rooms in the back of police stations with the way defendants were treated when they arrived at courthouses where the power of the state was restricted and they had strong constitutional protections.

On its 50th anniversary since publication, …

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. …

Sentencing Terrorist Crimes, Wadie E. Said

Publications

The legal framework behind the sentencing of individuals convicted of committing terrorist crimes has received little scholarly attention, even with the proliferation of such prosecutions in the eleven years following the attacks of September 11, 2001. This lack of attention is particularly striking in light of the robust and multifaceted scholarship that deals with the challenges inherent in criminal sentencing more generally, driven in no small part by the comparatively large number of sentencing decisions issued by the United States Supreme Court over the past thirteen years. Reduced to its essence, the Supreme Court's sentencing jurisprudence requires district courts to …

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

Publications

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. …

Race To Incarcerate: Punitive Impulse And The Bid To Repeal Stand Your Ground, Aya Gruber

Publications

Stand-your-ground laws have come to symbolize, especially for many in the center-to-left, the intense racial injustice of the modern American criminal system. The idea now ingrained in the minds of many racial justice-seekers is that only by narrowing the definition of self-defense (and thereby generally strengthening murder law) can we ensure Trayvon Martin's death was not in vain. However, when the story of Martin's killing first appeared on the national stage, the conversation was not primarily about the overly lenient nature of Florida's self-defense law. It was a multi-faceted dialogue about neighborhood warriors, criminal racial profiling, and especially the racially …

Marked!, Aya Gruber

Publications

No abstract provided.

Murder, Minority Victims, And Mercy, Aya Gruber

Publications

Should the jury have acquitted George Zimmerman of Trayvon Martin's murder? Should enraged husbands receive a pass for killing their cheating wives? Should the law treat a homosexual advance as adequate provocation for killing? Criminal law scholars generally answer these questions with a resounding "no." Theorists argue that criminal laws should not reflect bigoted perceptions of African Americans, women, and gays by permitting judges and jurors to treat those who kill racial and gender minorities with undue mercy. According to this view, murder defenses like provocation should be restricted to ensure that those who kill minority victims receive the harshest …

Data Underlying "Living Death: Ambivalence, Delay, And Capital Punishment", Marianne Wesson, Amy Kingston, Jocelyn Jenks, Laura Mcnabb, Lauren Seger, Genet Tekeste, Edwin Hurwitz

Research Data

The documents here archived contain data compilations researched and recorded by me and my research assistants in connection with the article by Marianne "Mimi" Wesson, Living Death: Ambivalence, Delay, and Capital Punishment (Feb. 20, 2013), https://ssrn.com/abstract=2221597.

Our research investigated four study jurisdictions: Arizona, Louisiana, Nevada, and Ohio. The data falls into two categories: analyses of reported appellate cases during designated periods in those jurisdictions; and investigations of the subsequent careers of every individual who resided on death row in one of our jurisdictions in April of 1995. The article further explains the impetus for these investigations, and the conclusions …

The Exit Myth: Family Law, Gender Roles, And Changing Attitudes Toward Female Victims Of Domestic Violence, Carolyn B. Ramsey

Publications

This Article presents a hypothesis suggesting how and why the criminal justice response to domestic violence changed, over the course of the twentieth century, from sympathy for abused women and a surprising degree of state intervention in intimate relationships to the apathy and discrimination that the battered women' movement exposed. The riddle of declining public sympathy for female victims of intimate-partner violence can only be solved by looking beyond the criminal law to the social and legal changes that created the Exit Myth.

While the situation that gave rise to the battered women's movement in the 1970s is often presumed …

Leniency As A Miscarriage Of Race And Gender Justice, Aya Gruber

Publications

No abstract provided.

Panel Discussion Iii: Recognizing And Addressing Immigration Concerns In The Criminal Process, Violeta Chapin, Dan Kesselbrenner, Christina Kleiser

Publications

No abstract provided.

De-Naturalizing Criminal Law: Of Public Perceptions And Procedural Protections, Benjamin Levin

Publications

Innocence, it turns out, is a complex concept. Yet the Innocence Movement has drawn power from the simplicity of the wrong-person story of innocence, as told most effectively by the DNA cases. The purity of that story continues to have power, but that story alone cannot sustain the Innocence Movement. It is too narrow. It fails to accommodate the vast majority of innocent people in our justice system. It fails to embrace innocence in its full complexity. . . . [I]n the end, for virtually all purposes, innocence must be understood under the objective rules that have long governed the …

Constructing The Threat And The Role Of The Expert Witness: A Response To Aziz Rana's Who Decides On Security?, Wadie E. Said

Publications

Aziz Rana's article presents clearly the overlooked but crucial question of "Who Decides on Security?" Namely, is determining who or what groups constitute a threat something that we are capable of making ourselves, or must we necessarily cede that authority to those in power-who supposedly have both the access to knowledge and the ability to understand it-to protect us from threats we cannot perceive? Using Rana's historical analysis as a framework, this Article builds on his thesis to show how the wide latitude granted to the conclusions of the Executive Branch's national security specialists in political matters has migrated into …

Understanding The United States' Incarceration Rate, William T. Pizzi

Publications

What has caused prison sentences to climb so sharply and consistently in the last four decades?

A "Neo-Feminist" Assessment Of Rape And Domestic Violence Law Reform, Aya Gruber

Publications

No abstract provided.

Reimagining Criminal Prosecution: Toward A Color-Conscious Professional Ethic For Prosecutors, Justin Murray

Publications

Prosecutors, like most Americans, view the criminal-justice system as fundamentally race neutral. They are aware that blacks are stopped, searched, arrested, and locked up in numbers that are vastly out of proportion to their fraction of the overall population. Yet, they generally assume that this outcome is justified because it reflects the sad reality that blacks commit a disproportionate share of crime in America. They are unable to detect the ways in which their own discretionary choices--and those of other actors in the criminal-justice system, such as legislators, police officers, and jurors--contribute to the staggering and disproportionate incarceration of black …

Rethinking Parental Incarceration, Sarah Abramowicz

University of Colorado Law Review

Recent changes in sentencing law, in the wake of cases interpreting Blakely v. Washington and United States v. Booker, have raised the possibility that courts sentencing parents may take children's interests into account more extensively than had previously been permissible. Now is thus an opportune time to reevaluate the merits of considering children's interests when sentencing parents. This Article uses the perspective of family law to offer a new rationale for, and a new approach to, taking children's interests into account when sentencing their parents. It does so by bringing out the connection between the debate over parental incarceration and …

The Material Support Prosecution And Foreign Policy, Wadie E. Said

Publications

No abstract provided.

The Need To Overrule Mapp V. Ohio, William T. Pizzi

Publications

This Article argues that it is time to overrule Mapp v. Ohio. It contends that the exclusionary rule is outdated because a tough deterrent sanction is difficult to reconcile with a criminal justice system where victims are increasingly seen to have a stake in criminal cases. The rule is also increasingly outdated in its epistemological assumption which insists officers act on "reasons" that they can articulate and which disparages actions based on "hunches" or "feelings." This assumption runs counter to a large body of neuroscience research suggesting that humans often "feel" or "sense" danger, sometimes even at a subconscious …

A Diva Defends Herself: Gender And Domestic Violence In An Early Twentieth-Century Headline Trial, Carolyn B. Ramsey

Publications

This short article was presented as part of a symposium on headline criminal trials, organized by St. Louis University School of Law in honor of Lawrence Friedman. It describes and analyzes the self-defense acquittal of opera singer Mae Talbot in Nevada in 1910 on charges of murdering her abusive husband. Based on extensive research into archival trial records and newspaper reports, the article discusses how the press, the court, and trial lawyers on both sides depicted the killing and Mae’s possible defenses. Without discounting the sensationalism and entertainment value, to a scandal-hungry public, of stories about violent marriages, I contend …

Humanitarian Law Project And The Supreme Court's Construction Of Terrorism, Wadie E. Said

Publications

No abstract provided.

A Distributive Theory Of Criminal Law, Aya Gruber

Publications

In criminal law circles, the accepted wisdom is that there are two and only two true justifications of punishment-retributivism and utilitarianism. The multitude of moral claims about punishment may thus be reduced to two propositions: (1) punishment should be imposed because defendants deserve it, and (2) punishment should be imposed because it makes society safer. At the same time, most penal scholars notice the trend in criminal law to de-emphasize intent, centralize harm, and focus on victims, but they largely write off this trend as an irrational return to antiquated notions of vengeance. This Article asserts that there is in …

Substitution Effects: A Problematic Justification For The Third-Party Doctrine Of The Fourth Amendment, Blake Ellis Reid

Publications

In the past half-century, the Supreme Court has crafted a vein of jurisprudence virtually eliminating Fourth Amendment protection in information turned over to third parties - regardless of any subjective expectation of privacy or confidentiality in the information on the part of the revealer. This so-called “third-party” doctrine of the Fourth Amendment has become increasingly controversial in light of the growing societal reliance on the Internet in the United States, where nearly every transaction requires a user to turn information over to at least one third party: the Internet service provider (“ISP”).

Citing the scholarship that has criticized the third-party …

The False Promise Of Retributive Proportionality, Aya Gruber

Publications

No abstract provided.

Coercing Voluntariness, Wadie E. Said

Publications

No abstract provided.

The Terrorist Informant, Wadie E. Said

Publications

A man sets himself on fire in front of the White House in a dispute with the Federal Bureau of Investigation (FBI). He has been working as an informant for the FBI in a high-profile terrorism prosecution and is unhappy with the $100,000 he has been paid so far. He has also been recently convicted of bank fraud. As a result, the government declines to call him as a witness, given the damage his actions have on his credibility and trustworthiness. This incident underscores the difficulty inherent in relying on paid informants to drive a prosecution, where material considerations such …

Ineffective Assistance Of Counsel Under People V. Pozo: Advising Non-Citizen Criminal Defendants Of Possible Immigration Consequences In Criminal Plea Agreements, Lindsay Vangilder

University of Colorado Law Review

Tens of thousands of non-citizen criminal defendants are removed from the United States each year. The Sixth Amendment of the United States Constitution and United States Supreme Court jurisprudence guarantee that these non-citizen criminal defendants will have effective assistance of criminal defense counsel, whether they elect to proceed to trial or decide to plead guilty. Although prevailing professional norms require that criminal defense counsel advise non-citizen defendants of possible immigration consequences of plea agreements, many courts do not impose a duty to advise on defense counsel. In fact, many courts deem immigration consequences to be collateral consequences rather than direct …

Commentary: Was The Bill Of Rights Irrelevant To Nineteenth-Century State Criminal Procedure?, Carolyn B. Ramsey

Publications

No abstract provided.