Criminal Procedure Commons^™

Punishment And Compensation, George P. Fletcher

Faculty Scholarship

When novelists and philosophers turn to the work of lawyers, they tend to gravitate toward certain issues and ignore others. Two processes-punishment and compensation-lie at the heart of our legal system, but only the former has drawn the attention of literary and philosophical minds.

The issues of wrongdoing, guilt, and expiation are of endless fascination not only for Dostoevsky and Dürrenmatt, but for any writer who seeks to fathom the foundations of our moral life. For philosophers, the concept of punishment has become a proving ground of the even broader conflict between deontological and utilitarian moral theories. Deontologists hold that …

Corporate Crime And Punishment: A Non-Chicago View Of The Economics Of Criminal Sanctions, John C. Coffee Jr.

Faculty Scholarship

In this article, Professor Coffee argues that fines are an inefficient means by which to deter organizational crimes. Instead, he urges a focus on the individual decision-maker and a system of competitive bids with respect to the choice of a fine as an alternative punishment.

The Insanity Defense In Juvenile Delinquency Proceedings, Maxine M. Harrington, Ann O'Regan Keary

Faculty Scholarship

The insanity defense in delinquency proceedings poses an important legal dilemma concerning the rights of children in the juvenile justice system. Indeed, beyond the purely legal concerns of the rights of an accused juvenile, the concept of criminal responsibility in the context of juvenile court proceedings raises perhaps an even more important issue of what is the best model for dealing with mentally ill juvenile offenders, both from the juvenile's viewpoint and that of society as a whole. It is our opinion that not only does the insanity defense have an appropriate role in juvenile proceedings, but that legal as …

Investigative Stops In High Crime Areas, Richard A. Gonzales

Faculty Scholarship

This article questions what constitutes reasonable suspicion of criminal activity particularly within high crime area. Some of the referenced cases:

• People v. Cantor, 36 N.Y.2d 106, 365 N.Y.S.2d 509, 324 N.E.2d 872 (1975)
• U.S. v. Magda, 409 F.Supp. 734,740 (S.D. N.Y. 1976)
• Terry v. Ohio, 392 U.S. 1 ( 1968)
• Sibron v. New York, 392 U.S. 40 ( 1968)
• U.S. v. Brignoni-Ponce, 422 U.S. 873 (1975)
• U.S. v. Flores, 462 F. Supp. 702 (E.D. NS. 1978)
• U.S. v. Oates, 560 F.2d 45, 49 (2d Cir. 1977)
• U.S. v. Constantine, 567 F.2d 266 ( 4th Cir. 1977)
• People v. Bower, 24 …

Should Intolerable Prison Conditions Generate A Justification Or An Excuse For Escape?, George P. Fletcher

Faculty Scholarship

In the last five years, appellate courts have responded sympathetically to the claims of prisoners who have escaped to avoid the threat of physical violence and homosexual rape. Lovercamp began the trend in 1974. Today the reports are replete with reversals directing trial courts to hear evidence bearing on the conditions that prompted the escape.

The courts have moved so quickly into this new field that they have had little chance to refine the underlying rationale for admitting the evidence. Appellate opinions, as well as several commentators, have sought to squeeze the new issue into one of three received doctrinal …

Bordenkircher V. Hayes: Ignoring Prosecutorial Abuses In Plea Bargaining, Stephen F. Ross

Faculty Scholarship

In Bordenkircher v. Hayes, the United States Supreme Court upheld a conviction on a charge the prosecutor admittedly filed solely because the defendant refused to plead guilty to another set of charges. Hayes is a sudden departure from a line of cases in which the Court refused to allow prosecutorial charging decisions to be made to discourage a criminal defendant from exercising constitutional or procedural rights. The decision effectively removes plea bargaining from its constitutional premise: the "mutuality of advantage" between the prosecutor and the defendant. Rather than approving the broad exercise of prosecutorial discretion in plea negotiations, the …

The Repressed Issues Of Sentencing: Accountability, Predictability, And Equality In The Era Of The Sentencing Commission, John C. Coffee Jr.

Faculty Scholarship

The existence of disparities in the sentences imposed on equally culpable offenders has long been a subject of jurisprudential concern. The author provides a critique of recent efforts to objectify the sentencing process that rely on a matrix table prescribing guideline sentence lengths on the basis of offense severity and predictions of recidivism. With particular emphasis on the Sentencing Commission authorized by pending federal legislation, he urges the need for political accountability in the body that inevitably makes value judgments in the preparation and administration of such a guideline system. Finally, the author discusses the normative issues that surround the …

Guiding Capital Sentencing Discretion Beyond The "Boiler Plate": Mental Disorder As A Mitigating Factor, James S. Liebman, Michael J. Shepard

Faculty Scholarship

In five decisions handed down on July 2, 1976, the United States Supreme Court held that the death penalty may be imposed for the crime of murder, so long as there are clear standards to guide the sentencing authority and the sanction is not imposed mandatorily. The authors examine the eighth amendment doctrinal framework used by the Court in the July 2 Cases, with particular reference to the requirement that individualized mitigating information be considered in the sentencing decision. Illustrating that requirement, they contend that mental disorder should be considered as a possibly mitigating factor and then suggest a standard …

The Standards' Recommendations On Dispositions: A Panel Discussion, Stanley Z. Fisher, Howard A. Levine, Fred Cohen

Faculty Scholarship

ROFESSOR STANLEY FISHER, MODERATOR: Good evening. I'd like to welcome you all here. Of all of the volumes of the Juvenile Justice Standards Project, I suppose the most controversial are those dealing with the disposition stage. They have elicited a good deal of critical comment, even though they haven't yet been published, and many of the comments and criticisms have apparently been on the basis of speculation and rumor as to what the Standards actually say. We have with us tonight to discuss these Standards two persons who have a great deal of expertise in this field. The first, on …

The Disposition Process Under The Juveniles Justice Standards Project, Stanley Z. Fisher

Faculty Scholarship

The Juvenile Justice Standards Project volumes were publicly discussed for months prior to their publication. Unavoidably, much of the discussion was based upon rumor regarding their contents. In that context, critics charged that the proposed Standards would "destroy the nation's juvenile court system and replace it with a 'junior criminal system' "1 and claimed that the Standards substitute the philosophy of "just deserts" for the traditional rehabilitative goals of juvenile justice.' The news media described the Standards on disposition of delinquents as designed to "fit the penalty to the crime, no matter what the age of the perpetrator. '3 I …

Beyond The Shut-Eyed Sentry: Toward A Theoretical View Of Corporate Misconduct And An Effective Legal Response, John C. Coffee Jr.

Faculty Scholarship

Like hard cases, festering scandals make bad law. As public perceptions shift so that conduct once tolerated becomes seen as illicit, political pressures develop that can result in hastily improvised responses by the legal system to fill the newly perceived vacuum. This generalization is advanced to question neither the inalienable right of the public to be scandalized, nor the need for corporate reform, but to approach a highly problematic dilemma: hurried, moralistic responses to a perceived evil often prove not only ineffective, but even counterproductive. The serious student of complex organizations may recognize this assertion as a slightly altered variant …

Pro Se Litigation -- Litigating Without Counsel: Faretta Or For Worst, Susan Herman, Ira P. Robbins

Faculty Scholarship

No abstract provided.

Evidence: Prior Crimes And Prior Bad Acts Evidence, Paul W. Grimm

Faculty Scholarship

No abstract provided.

The Metaphysics Of Punishment–An Exercise In Futility, William K.S. Wang

Faculty Scholarship

No abstract provided.

Criminal Law And Procedure, David Rossman

Faculty Scholarship

The Constitutionality of the Trial de Novo System. The legal challenge to the constitutionality of the Massachusetts trial de novo system was settled by the Supreme Court of the United States during the Survey year in Ludwig v. Massachusetts. The Court upheld the Commonwealth's practice of trial de novo finding that the system does not constitute an impermissible burden upon a defendant's right to a trial by jury and that the requirement that a defendant undergo two trials in order to obtain a jury trial is not a violation of the right against double jeopardy.

Parole Revocation And The Right To Counsel, Paul W. Grimm

Faculty Scholarship

No abstract provided.

Criminal Law And Procedure, David Rossman

Faculty Scholarship

Trial De Novo. The constitutional foundation underlying the system of trial de novo in Massachusetts was subjected to a frontal assault during the Survey year. The system survived, but there is reason to doubt its continuing validity. The debate over the wisdom of maintaining a two-tiered system of trial courts has been wide-ranging. One of the chief complaints against the trial de novo system is that it insulates trial judges from any meaningful appellate review. This isolation fosters an environment in which trial judges can, with impunity, ignore the constraints placed upon judges in courts of record. It is exceedingly …

The Future Of Sentencing Reform: Emerging Legal Issues In The Individualization Of Justice, John C. Coffee Jr.

Faculty Scholarship

The dilemma of the American sentencing judge is qualitatively unique. Because our system of criminal justice has embraced to a degree unequaled elsewhere the rehabilitative ideal that punishment should fit not the crime, but the particular criminal, the sentencing judge must labor to fulfill the dual and sometimes conflicting roles of judge and clinician. Entrusted with enormous discretion, he is expected to "individualize" the sentence he imposes to suit the character, social history, and potential for recidivism of the offender before him. Yet, because of the general absence in our Sentencing Reform system of meaningful procedures for the appellate review …

The Indigent's Right To A Transcript Of Record, Larry Yackle

Faculty Scholarship

There is no more fascinating subject in the field of federal constitutional law than the relationship between due process and equal protection, concepts brought together in the fourteenth amendment. Governmental action that is fundamentally unfair and a denial of due process may also involve discriminatory treatment and a denial of equal protection.' Accordingly, in a number of cases the distinction between the two concepts has been blurred. In Douglas v. California, the Supreme Court held that on first appeal counsel must be furnished to indigents at state expense because the failure to provide professional representation is both fundamentally unfair and …

Traditional Criminal Procedure In Ethiopia, Stanley Z. Fisher

Faculty Scholarship

In the decade 1955-1965 the Ethiopian government completely revolutionized its legal system by promulgating comprehensive legal codes and a new constitution. These laws have a predominantly Western flavor, and seem to bear little relation to the traditional patterns of life which still prevail in the Empire-one of the least "developed" areas of Africa. This state of affairs has led some to characterize the new codes as "fantasy law," which may serve to put a modern "face" on the country but, at least for some time to come, will not have any serious impact on the conduct of its affairs.

The Theory Of Criminal Negligence: A Comparative Analysis, George P. Fletcher

Faculty Scholarship

Negligence is a problematic ground for criminal liability. Every major Western legal system punishes negligent as well as intentional violations of protected interests; but theorists both here and abroad feel uneasy about the practice Negligent motoring and negligent manufacturing significantly threaten the public interest; yet Western judges seem more comfortable punishing counterfeiters and prostitutes than imposing sanctions against those who inadvertently take unreasonable risks. Negligence appears indeed to be an inferior, almost aberrant ground for criminal liability. Every interest protected by the criminal law is protected against intentional violations; but only a few-life, bodily integrity, and sometimes property-are secured against …

The Grand Jury As The New Inquisition, Michael E. Tigar, Madeline R. Levy

Faculty Scholarship

No abstract provided.

Decision Trees, Peter L. Strauss, Michael R. Topping

Faculty Scholarship

The object of this paper is to inform those concerned with the administration of justice in Ethiopia – particularly, criminal justice – about a new and simple procedure which may assist in procuring uniform interpretation and application of laws and regulations. The problem of uniform interpretation and application is particularly severe where, as in Ethiopia, new laws must be interpreted and applied by persons who have not yet had the opportunity of formal legal education. For these persons the discovery of the relevant code articles and the understanding of their interrelationships and application must be very difficult indeed. One possible …

Foreword: Waiver Of Constitutional Rights: Disquiet In The Citadel, Michael E. Tigar

Faculty Scholarship

Foreword to Harvard Law Review review of Supreme Court 1969 Term

Criminal Procedure For Juvenile Offenders In Ethiopia, Stanley Z. Fisher

Faculty Scholarship

The purpose of this article is to set out, in summary fashion, the law concerning juvenile offenders in Ethiopia. Our focus will be on procedural rather than substantive aspects-insofar as it is possible to separate the two-and particularly upon the enforcement of constitutional guarantees in the process.

Due Process Considerations In Police Showup Practices, Gordon G. Young

Faculty Scholarship

No abstract provided.

Criminal Justice In Extremis: Administration Of Justice During The April 1968 Chicago Disorder, Mark N. Aaronson

Faculty Scholarship

No abstract provided.

"Uncontrollable" Actions And The Eighth Amendment: Implications Of Powell V. Texas, Kent Greenawalt

Faculty Scholarship

No questions of criminal justice are more fundamental than the bases for imposing criminal punishment, yet the Federal Constitution says nothing explicit about them. It is, therefore, understandable that the increasing limitations imposed by constitutional interpretation upon procedures for ascertaining criminal guilt have not been accompanied by similar limits upon principles of criminal responsibility. That the difference in treatment is understandable does not, of course, necessarily mean it has been justified.

When the Court struck down a law punishing addiction in Robinson v. California in 1962, it was still unclear whether it was willing to become significantly implicated in developing …

On Interpreting The Ethiopian Penal Code, Peter L. Strauss

Faculty Scholarship

The aim of this article is to set out and discuss some general principles of interpreting the Ethiopian Penal Code – that is to say, of using it. Even now, ten years after it came into effect, many people have difficulty in understanding and using the Penal Code in a straightforward way. It seems complex, and many of its fundamental conceptions are unfamiliar to Ethiopian lawyers. This article, discussing at length how the code is built, may help reduce its apparent complexity and thus facilitate its day-to-day application.

The Warren Court And Criminal Procedure, A. Kenneth Pye

Faculty Scholarship

No abstract provided.