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Articles 211 - 240 of 262

Full-Text Articles in Criminal Procedure

The 2001 Federal Economic Crime Sentencing Reforms: An Analysis And Legislative History, Frank O. Bowman Iii Jan 2001

The 2001 Federal Economic Crime Sentencing Reforms: An Analysis And Legislative History, Frank O. Bowman Iii

Faculty Publications

This Article has four parts. First, it describes the general structure of the Federal Sentencing Guidelines and the approach to sentencing economic crimes in effect between 1987 and 2001. Second, it outlines the defects in the former economic crime guidelines that led to the call for reform. Third, it describes the process undertaken by the Sentencing Commission that led to the passage of the 2001 economic crime amendments and, in so doing, provides a roadmap to sources of legislative history. Fourth, it explains and analyzes the new guidelines in light of their legislative history, with primary emphasis on the consolidated …

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The Craft Of Due Process, Kevin C. Mcmunigal Jan 2001

The Craft Of Due Process, Kevin C. Mcmunigal

Faculty Publications

Response to Professor Israel's presentation "On the Costs of Uniformity and the Prospects of Dualism in Constitutional Criminal Procedure."

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Allocution For Victims Of Economic Crimes, Jayne W. Barnard Jan 2001

Allocution For Victims Of Economic Crimes, Jayne W. Barnard

Faculty Publications

No abstract provided.

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The Supreme Court's Backwards Proportionaility Jurisprudence: Comparing Judicial Review Of Excessive Criminal Punishments And Excessive Punitive Damages Award, Adam M. Gershowitz Sep 2000

The Supreme Court's Backwards Proportionaility Jurisprudence: Comparing Judicial Review Of Excessive Criminal Punishments And Excessive Punitive Damages Award, Adam M. Gershowitz

Faculty Publications

No abstract provided.

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Editor's Observations: The 2001 Economic Crime Package: A Legislative History, Frank O. Bowman Iii Jul 2000

Editor's Observations: The 2001 Economic Crime Package: A Legislative History, Frank O. Bowman Iii

Faculty Publications

On April 6, 2001, the U.S. Sentencing Commission approved a group of amendments to guidelines governing the sentencing of economic crimes. These measures, collectively known to as the “economic crime package,” are the culmination of some six years of deliberations by both the Conaboy and Murphy Sentencing Commissions working together with interested outside groups such as the defense bar, the Justice Department, probation officers, and the Criminal Law Committee of the U.S. Judicial Conference, The package contains three basic components. First, the now-separate theft and fraud guidelines, Sections 2B1.1 and 2F1.1, will be consolidated into a single guideline. Second, the …

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Briefing Paper On Problems In Redefining "Loss" (U.S. Sentencing Commission Economic Crime Symposium), Frank O. Bowman Iii Jul 2000

Briefing Paper On Problems In Redefining "Loss" (U.S. Sentencing Commission Economic Crime Symposium), Frank O. Bowman Iii

Faculty Publications

On October 12-13, 2000, the U.S. Sentencing Commission sponsored its Third Symposium On Crime and Punishment in the United States: Federal Sentencing Policy for Economic Crimes and New Technology Offenses. The afternoon of the first day of the meeting was devoted to discussing the concept of “loss” as a measurement of defendant culpability and offense seriousness. The conferees were divided into small groups to discuss discrete sub-issues relating to “loss” and its place in sentencing economic crimes under the Guidelines. Following the small group discussions, the discussion leaders (“facilitators”) addressed a plenary session of the conference to report on the …

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Sentencing Guidelines: Where We Are And How We Got Here (Panel Remarks), Frank O. Bowman Iii Apr 2000

Sentencing Guidelines: Where We Are And How We Got Here (Panel Remarks), Frank O. Bowman Iii

Faculty Publications

The Federal Sentencing Guidelines were created with two broad goals in mind. One, of course, was to reduce unjustified sentencing disparity, and that was accomplished in two ways. The first was to reduce the scope of front-end judicial discretion through the creation of guidelines. The second, which I think Tom Hutchison touched on,1 was to eliminate altogether the discretion of penological experts in the parole commission at the back end of the punishment process.

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A Judicious Solution: The Criminal Law Committee Draft Redefinition Of The Loss Concept In Economic Crime Sentencing, Frank O. Bowman Iii Jan 2000

A Judicious Solution: The Criminal Law Committee Draft Redefinition Of The Loss Concept In Economic Crime Sentencing, Frank O. Bowman Iii

Faculty Publications

In December 1999, the United States Sentencing Commission (Commission), an institution that had been in suspended animation for over a year with all seven voting seats vacant, fluttered its eyelids and came back to life. An agreement between the Senate and the White House produced seven new Commissioners: five sitting federal judges, the former General Counsel of the Commission, and a law professor. The new group began work immediately, making itself accessible in meetings with lawyers and judges around the country, exuding an air of intelligence and collegiality, and dispensing in short order with a backlog of amendments to the …

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Completing The Sentencing Revolution: Reconsidering Sentencing Procedure In The Guidelines Era, Frank O. Bowman Iii Jan 2000

Completing The Sentencing Revolution: Reconsidering Sentencing Procedure In The Guidelines Era, Frank O. Bowman Iii

Faculty Publications

The central innovation of the guidelines sentencing revolution has been the creation of a regime in which facts other than those required for conviction have necessary consequences at sentencing. In days of yore, judges mulling a sentence were entitled to receive information from virtually any source on virtually any subject, but they were never obliged to pass public judgment on the truth or falsity of what they heard because no finding of fact could constrain their discretion to set a sentence anywhere within the boundaries set by statutory maxima and minima. No more. The project of the original United States …

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Prosecutorial Discretion And Prosecution Guidelines: A Case Study In Controlling Federalization, Michael A. Simons Jan 2000

Prosecutorial Discretion And Prosecution Guidelines: A Case Study In Controlling Federalization, Michael A. Simons

Faculty Publications

In this Article Michael Simons examines the ways in which the federalization of crime can be controlled. Simons argues that prosecutorial discretion is the most important variable in the federalization process and that controlling prosecutorial discretion is the key to controlling federalization. He presents the Child Support Recovery Act as a model for how prosecution guidelines for federal criminal statutes can provide such control Federalization of criminal child support enforcement has been successful because federal prosecutors have exercised discretion in a manner consistent with the concerns expressed by the bench and the academy about federalization. Simons concludes by exploring how …

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Public School Officials' Use Of Physical Force As A Fourth Amendment Seizure: Protecting Students From The Constitutional Chasm Between The Fourth And Fourteenth Amendments, Kathryn R. Urbonya Jan 2000

Public School Officials' Use Of Physical Force As A Fourth Amendment Seizure: Protecting Students From The Constitutional Chasm Between The Fourth And Fourteenth Amendments, Kathryn R. Urbonya

Faculty Publications

No abstract provided.

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Practical Magic: A Few Down-To-Earth Suggestions For The New Sentencing Commission, Frank O. Bowman Iii Oct 1999

Practical Magic: A Few Down-To-Earth Suggestions For The New Sentencing Commission, Frank O. Bowman Iii

Faculty Publications

Most of the contributions to this outpouring of advice to the new Sentencing Commissioners have to do with the substance of the Guidelines. What follows here is far more prosaic - some suggestions not about what the Commission should do, but about how the Commission should work. I make these suggestions with some trepidation, recognizing the difficulty of the task the new members have undertaken. However, I hope the perspective of one who practiced before and after the Guidelines as a federal prosecutor, participated in the internal workings of the Commission as Special Counsel in 1995-96, and has been a …

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Delaware's Capital Jury Selection: Inadequate Voir Dire And The Problem Of Automatic Death Penalty Jurors, Adam M. Gershowitz Oct 1999

Delaware's Capital Jury Selection: Inadequate Voir Dire And The Problem Of Automatic Death Penalty Jurors, Adam M. Gershowitz

Faculty Publications

No abstract provided.

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High Crimes And Misdemeanors: Defining The Constitutional Limits On Presidential Impeachment, Frank O. Bowman Iii, Stephen L. Sepinuck Oct 1999

High Crimes And Misdemeanors: Defining The Constitutional Limits On Presidential Impeachment, Frank O. Bowman Iii, Stephen L. Sepinuck

Faculty Publications

This Article had its genesis in a statement by the authors submitted to the House Judiciary Committee during its proceedings regarding the impeachment of President Clinton. This final much expanded version appears after the conclusion of the Clinton impeachment proceedings in the Senate, and it is certainly informed by the course those proceedings took. Strictly speaking, however, this is not an article “about” the Clinton impeachment. Although this Article draws some conclusions from the treatment by the House and Senate of the fundamental allegations against President Clinton, it does not address in detail the specific facts underlying those allegations. The …

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Defending Substantial Assistance: An Old Prosecutor's Meditation On Singleton, Sealed Case, And The Maxfield-Kramer Report, Frank O. Bowman Iii Jul 1999

Defending Substantial Assistance: An Old Prosecutor's Meditation On Singleton, Sealed Case, And The Maxfield-Kramer Report, Frank O. Bowman Iii

Faculty Publications

This essay begins with a brief analysis of the panel and en banc opinions in Sealed Case and Singleton, and then turns to the more arresting question of whether the panel decisions were transitory aberrations or something more. Particularly if one considers Singleton and Sealed Case together with the Sentencing Commission's staff report on substantial assistance practice (the “Maxfield - Kramer Report”), it is difficult to escape the conclusion that unease with the current substantial assistance regime is growing. Unlike many observers, I view §5K1.1 as a very good thing, an invaluable prosecutorial tool against group criminality, but a tool …

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Departing Is Such Sweet Sorrow: A Year Of Judicial Revolt On "Substantial Assistance" Departures Follows A Decade Of Prosecutorial Indiscipline (Prosecution Law Symposium), Frank O. Bowman Iii Jul 1999

Departing Is Such Sweet Sorrow: A Year Of Judicial Revolt On "Substantial Assistance" Departures Follows A Decade Of Prosecutorial Indiscipline (Prosecution Law Symposium), Frank O. Bowman Iii

Faculty Publications

the first section of this essay is devoted to demonstrating the courts' errors. Nonetheless, considered together, these opinions are perhaps an understandable reflection of judicial unease with an important component of the federal sentencing system — the longstanding, but increasingly common, practice of making deals with criminal defendants to reduce their sentences in return for testimony against their accomplices. This Article's second section will consider the most common criticisms of the system of bargaining for testimony under the United States Sentencing Guidelines (the Guidelines) to determine whether Singleton and Sealed Case may be good policy even if they are bad …

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Aveux Incités Par Les Officiers Chargés De L’Application De La Loi, L’Expérience Des Etats-Unis, Paul Marcus Dec 1998

Aveux Incités Par Les Officiers Chargés De L’Application De La Loi, L’Expérience Des Etats-Unis, Paul Marcus

Faculty Publications

No abstract provided.

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Coping With "Loss": A Re-Examination Of Sentencing Federal Economic Crimes Under The Guidelines, Frank O. Bowman Iii Apr 1998

Coping With "Loss": A Re-Examination Of Sentencing Federal Economic Crimes Under The Guidelines, Frank O. Bowman Iii

Faculty Publications

This Article has three objectives. First, it attempts to rethink the sentencing of federal economic criminals in light of the basic purposes of sentencing and of the Guidelines' particular structure and objectives. Second, it examines the deficiencies in the current sentencing guidelines regarding theft, fraud, and other economic crimes, and the problem areas in the case law construing those guidelines. Third, it proposes and analyzes a consolidated guideline, together with accompanying application notes, for sentencing virtually all theft and fraud cases (a draft of which follows the text of this Article as Appendix A).

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Double Jeopardy: “Twice In Jeopardy”, Paul C. Giannelli Jan 1998

Double Jeopardy: “Twice In Jeopardy”, Paul C. Giannelli

Faculty Publications

No abstract provided.

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Double Jeopardy: “Same Offense”, Paul C. Giannelli Jan 1998

Double Jeopardy: “Same Offense”, Paul C. Giannelli

Faculty Publications

No abstract provided.

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Deciding The Stop And Frisk Cases: A Look Inside The Supreme Court's Conference, John Q. Barrett Jan 1998

Deciding The Stop And Frisk Cases: A Look Inside The Supreme Court's Conference, John Q. Barrett

Faculty Publications

In our system of constitutional decision-making, the Supreme Court makes law as an institution in its formal written opinions. The Court and its individual members make their official legal marks in the printed pages of the United States Reports. In June 1968, in Terry v. Ohio and Sibron v. New York, the two decisions that approved the constitutionality under the Fourth Amendment of police stop and frisk practices, the Court filled many official pages with rich discussion. Over the ensuing thirty years, these Court and individual opinions have shaped the course of constitutional analysis in our courts and guided the …

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The Street Locations: Downtown Cleveland, October 31, 1963, John Q. Barrett Jan 1998

The Street Locations: Downtown Cleveland, October 31, 1963, John Q. Barrett

Faculty Publications

This appendix to Deciding the Stop and Frisk Cases: A Look Inside the Supreme Court’s Conference, 72 St. John’s L. Rev. 749 (1998), consists of a map drawn by Jill Dinneen (SJU Law '99), based on Sanborn maps from the 1950s and 1960s, photographs and eyewitness descriptions of downtown Cleveland then and now; and a key to marked locations on the map.

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State Of Ohio V. Richard D. Chilton And State Of Ohio V. John W. Terry: The Suppression Hearing And Trial Transcripts, John Q. Barrett Jan 1998

State Of Ohio V. Richard D. Chilton And State Of Ohio V. John W. Terry: The Suppression Hearing And Trial Transcripts, John Q. Barrett

Faculty Publications

This appendix to Deciding the Stop and Frisk Cases: A Look Inside the Supreme Court’s Conference, 72 St. John’s L. Rev. 749 (1998), includes Biographical Information on the Participants in the Case; and transcripts of the complete pretrial and trial proceedings in the 1964 criminal prosecutions of Richard Chilton and John Terry, arranged by Prof. Barrett to create the organization reflected in the Table of Contents at the beginning of the appendix. Footnotes were added to provide citations and, in a few instances, to clarify the text. Bracketed material was added to correct obvious slips of the tongue or the …

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Appendix To Guest Editor's Observations: A Proposal For A Consolidated Theft/Fraud Guideline, Frank O. Bowman Iii Jan 1997

Appendix To Guest Editor's Observations: A Proposal For A Consolidated Theft/Fraud Guideline, Frank O. Bowman Iii

Faculty Publications

Professor Frank Bowman proposed the following consolidated theft/fraud guideline to the U.S. Sentencing Commission in October 1997. The proposal is explained in detail in a forthcoming law review article, Coping With Loss”: A Re-Examination of Federal Economic Crime Sentencing Under the Guidelines, 51 Vanderbilt L. Rev. -- (April 1998).

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Guest Editor's Observations: Back To Basics: Helping The Commission Solve The "Loss" Mess With Old Familiar Tools, Frank O. Bowman Iii Jan 1997

Guest Editor's Observations: Back To Basics: Helping The Commission Solve The "Loss" Mess With Old Familiar Tools, Frank O. Bowman Iii

Faculty Publications

Roughly one-quarter of all convicted federal defendants are sentenced for some kind of economic crime.1 There is an emerging consensus that the provisions of the federal sentencing guidelines devoted to economic crime do not work very well, a consensus that has created a powerful momentum for significant change. This Issue of FSR is about whether the guidelines concerning economic offenses, principally §2B1.1 (Theft) and §2F1.1 (Fraud), should be materially altered, and if so, how. The debate that has been joined over this question is technically complex and philosophically challenging. There are disagreements over issues as particular as when collateral posted …

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Disparate Effects In The Criminal Justice System: A Response To Randall Kennedy's Comment And Its Legacy, Janai S. Nelson Jan 1997

Disparate Effects In The Criminal Justice System: A Response To Randall Kennedy's Comment And Its Legacy, Janai S. Nelson

Faculty Publications

For many African Americans, the criminal justice system symbolizes an oppressive force, and yet, is a necessary institution in an increasingly lawless society. African Americans are at the same time its victims and beneficiaries, although various sentiments exist regarding the extent to which they are either. It is precisely this paradox, coupled with the promulgation of certain criminal legislation and legal precedent which directly and, potentially, adversely affect the African-American community that inspired the author to address the issues and arguments raised in Randall Kennedy's The State, Criminal Law, and Racial Discrimination: A Comment, 107 Harv. L. Rev. 1255 (1994), …

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Sistema Da Justiça Criminal Nos Estados Unidos Da América Uma Visāo Resumida, Paul Marcus Jan 1997

Sistema Da Justiça Criminal Nos Estados Unidos Da América Uma Visāo Resumida, Paul Marcus

Faculty Publications

No abstract provided.

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Whoever Fights Monsters Should See To It That In The Process He Does Not Become A Monster: Hunting The Sexual Predator With Silver Bullets -- Federal Rules Of Evidence 413-415 -- And A Stake Through The Heart -- Kansas V. Hendricks, Joelle A. Moreno Jan 1997

Whoever Fights Monsters Should See To It That In The Process He Does Not Become A Monster: Hunting The Sexual Predator With Silver Bullets -- Federal Rules Of Evidence 413-415 -- And A Stake Through The Heart -- Kansas V. Hendricks, Joelle A. Moreno

Faculty Publications

No abstract provided.

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To Tell The Truth: The Problem Of Prosecutorial "Manipulation" Of Sentencing Facts, Frank O. Bowman Iii Apr 1996

To Tell The Truth: The Problem Of Prosecutorial "Manipulation" Of Sentencing Facts, Frank O. Bowman Iii

Faculty Publications

Frank O. Bowman, III*In January of this year, Francesca Bowman, Chair of Probation Officers Advisory Group, sent a letter to Judge Richard P. Conaboy, Chairman of the Sentencing Commission, summarizing the results of a survey sent to probation officers in eighty-five districts. It expresses the concern that, in the view of some probation officers, the government usually” is cooperative in supplying information to probation officers preparing presentence investigation reports, but that there appear to be exceptions when the government wants to protect a plea agreement.”

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A Bludgeon By Any Other Name: The Misuse Of Ethical Rules Against Prosecutors To Control The Law Of The State, Frank O. Bowman Iii Apr 1996

A Bludgeon By Any Other Name: The Misuse Of Ethical Rules Against Prosecutors To Control The Law Of The State, Frank O. Bowman Iii

Faculty Publications

My objective here is threefold: (1) to explain these ethical rules and demonstrate how each is in conflict with longstanding principles of federal criminal law; (2) to explain why these rules are illegitimate, both as rules of ethics and as rules of positive law; and (3) to offer some observations on how the dispute over these rules can sharpen our thinking about the nature and proper limits of ethical rules governing lawyers.

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