Criminal Procedure Commons^™

Apprendi's Limits, Roger Craig Green

ExpressO

This article argues that Blakely v. Washington did not decide (explicitly or implicitly) whether the Federal Sentencing Guidelines are constitutional. It also claims that the best interpretation of Apprendi v. New Jersey would uphold the Guidelines because they do not result in a punishment above the crime of conviction's statutory maximum. The notion that statutory maxima are constitutionally important stems from separation of power principles. Congress, not the Commission, is responsible for defining crimes, and thereby for prescribing how much punishment is authorized by a jury's guilty verdict.

State, Be Not Proud: A Retributivist Defense Of The Commutation Of Death Row And The Abolition Of The Death Penalty, Dan Markel

ExpressO

In the aftermath of Governor Ryan's decision last year to commute the sentences of each offender on Illinois' death row, various scholars have claimed that Ryan’s action was a “grave injustice” and, from a retributivist perspective, “an unmitigated moral disaster.” This Article contests that position, showing not only why a commutation of death row is permitted under principles of retributive justice, but also why it might be required. When properly understood, retributive justice, in its commitment to moral accountability and equal liberty, hinges on modesty and dignity in modes of punishment. In this vein, retributivism opposes the apparently ineluctable slide …

The New Russian Roulette: Brady Revisited, Jannice E. Joseph

Capital Defense Journal

No abstract provided.

Ring Around The Grand Jury: Informing Grand Jurors Of The Capital Consequences Of Aggravating Facts, K. Brent Tomer

Capital Defense Journal

No abstract provided.

Va. Code Ann. S 19.2-163.7*

Capital Defense Journal

No abstract provided.

Va. Code Ann. § 19.2-264.5*

Capital Defense Journal

No abstract provided.

Hoist With Their Own Petard?, Steven L. Chanenson

Working Paper Series

In 2003, Congress and the Department of Justice tried to increase their control over the United States Sentencing Commission and federal sentencing generally. Congress appeared to have achieved this goal when it passed the Prosecutorial Remedies and Tools Against the Exploitation of Children Today Act of 2003 (“PROTECT Act”), which resulted in reduced grounds for downward departures, Congressionally-revised text of the Federal Sentencing Guidelines, and a constrained Sentencing Commission potentially devoid of judges. Yet pro-government interpretations of the PROTECT Act may have been premature because the Supreme Court has now struck down parts of Washington State’s legislatively-enacted sentencing guidelines in …

Double Jeopardy And The Death Penalty: A Fundamental Constitutional Protection With Life Or Death Consequences, Kristen Lindsay Todd

Campbell Law Review

What is the effect of a deadlocked jury in a sentencing hearing for the application of the death penalty on the termination of jeopardy? This comment will explore this issue as presented in Sattazahn v. Pennsylvania, and analyze not only the arguments made in both the majority and dissenting opinions, but other considerations which arise when deciding if double jeopardy protections should apply. Also considered in the comment is the effect of the Sattazahn decision on future criminal defendants. What consequences will this decision have for the death row defendant when trying to decide whether to appeal his possibly erroneous …

Double Jeopardy And Capital Sentencing: Preserving The Implied Acquittal Of Death In The Wake Of Sattazahn V. Pennsylvania, Leslie Evans Wood

Washington and Lee Law Review

No abstract provided.

Flouting The Law, Janice Nadler

ExpressO

What happens when a person’s common sense view of justice diverges from the sense of justice he or she sees enshrined in particular laws? In particular, does the perception of one particular law as unjust make an individual less likely to comply with unrelated laws? This Article advances the Flouting Thesis – the idea that the perceived legitimacy of one law can influence one’s willingness to comply with unrelated laws – and provides original experimental evidence to support this thesis. This Article presents new, original evidence that one’s willingness to disobey the law can extend far beyond the particular unjust …

A Third Parallel Primrose Path: The Supreme Court's Repeated, Unexplained, And Still Growing Regulation Of State Courts' Criminal Appeals, Russell M. Coombs

ExpressO

Recently the United States Supreme Court has ruled, in a series of cases beginning with Ornelas v. United States, that decisions of certain mixed questions of federal constitutional law and fact, arising under various amendments, must be reviewed de novo on direct appeal. The Court has not specified that state courts are bound by these rulings, but has used conflicting language relevant to that issue. Faced with this ambiguity, the courts of a number of states have departed from their prior practices by following these rulings, at least some because they consider themselves bound to do so, and have extended …

'You'd Better Be Good': Congressional Threats Of Removal Against Federal Judges, Marc O. Degirolami

ExpressO

In the attached article, I argue that congressional threats of removal against federal judges are increasing in prevalence and forcefulness and that as a result the strained relationship between the judiciary and Congress – a topic of recent attention and debate – will continue to deteriorate in the coming years. I examine two bills, the Feeney Amendment to the PROTECT Act and House of Representatives Resolution 568 (in which Congress would disavow citation in judicial decisions to foreign law), to demonstrate this thesis.

I next ask what explains the phenomenon of congressional threats of removal, deploying first Thomas Hobbes’ state-of-nature …

A Review Of Parliamentary Privilege With An Approach To Iranian Legal System, Seyed Doraid Mousavi Mojab

ExpressO

The necessity of immunity of parliament and its Members has led to determine and assure particular privilege in the Constitutions or ordinary laws in the great majority of countries. This legal institution is to provide freedom of speech and to maintain the independence of representatives in the exercise of their duties without undue interference or fear.

To define and justify the necessity of it, different theories like "the prestige of representatives' legal personality" and "doctrine of necessity" have been introduced.

The legal supports, which observe the parliamentary privilege, can be generally studied in two categories with distinct descriptions and effects; …

The Rise Of Managerial Judging In International Criminal Law, Maximo Langer

ExpressO

Abstract This article puts the procedure of the International Criminal Tribunal for the former Yugoslavia (ICTY) in a completely new and previously unexplored light. Rejecting the predominant view of ICTY procedure as a hybrid between the adversarial system of the U.S. and the inquisitorial system of civil law jurisdictions, this article shows that ICTY procedure is best described through a third procedural model that does not fit in either of the two traditional systems. This third procedural model is close to the managerial judging system that has been adopted in U.S. civil procedure. The article then explores some of the …

Forecasting Harm: The Law And Science Of Risk Assessment Among Prisoners, Predators, And Patients, John Monahan

ExpressO

Scientifically valid instruments are being used for the first time to assess an individual’s risk of violence in criminal sentencing and in the civil commitment of mental patients and sexual predators. Risk factors on these instruments pertain to what the person is (e.g., gender), what the person has (e.g., personality disorder), what the person has done (e.g., past violence), and what has been done to the person (e.g., past victimization). In this Article, I argue that in criminal law, with its emphasis on blameworthiness for actions taken, the admissibility of scientifically valid risk factors is properly constrained to those that …

An Attitudinal Theory Of Excuse In Criminal Law, Peter Westen

ExpressO

The mother lode of criminal law scholarship is a unitary theory of excuses, that is, a normative account as to why a person who engages in conduct that a criminal statute prohibits ought nevertheless not be blamed for it. After defining "excuse" against commentators who argue that it cannot be coherently defined, and after criticizing competing theories of excuse, I argue that the feature that renders persons normatively blameless -- and, typically, legally blameless, too -- for engaging in conduct that a criminal statute prohibits is the possession of a certain attitude with which he engages in it. A person …

A Public Choice Theory Of Criminal Procedure, Vikramaditya S. Khanna, Keith N. Hylton

ExpressO

We provide a more persuasive justification for the pro-defendant bias in Anglo-American criminal procedure than the most commonly forwarded justifications to date. The most commonly forwarded rationale for the pro-defendant bias is that the costs of false convictions – specifically, the sanctioning and deterrence costs associated with the erroneous imposition of criminal sanctions – are greater than the costs of false acquittals. We argue that this rationale provides at best a partial justification for the extent of pro-defendant procedural rules. Under our alternative justification, pro-defendant protections serve primarily as constraints on the costs associated with improper enforcement or rent seeking …

The Alley Behind First Street, Northeast: Criminal Abortion In The Nation's Capital 1873-1973, Douglas R. Miller

ExpressO

The thirtieth anniversary of Roe v. Wade found our country no less divided over abortion than it was during the era of its prohibition. As the bitter struggle over judicial nominations throughout the present administration suggests, abortion’s future remains at the forefront of American political debate.

In their push for increased limitations, abortion opponents generally overlook the historical consequences of prohibition. Abortion rights proponents often invoke history in their opposition to new restrictions, but tend to do so superficially, and only in a manner that supports their position.

This article attempts a more complex study of criminal abortion’s legal and …

Capital Punishment, Proportionality Review, And Claims Of Fairness (With Lessons From Washington State), Timothy V. Kaufman-Osborn

Washington Law Review

This Article explores the adequacy of one of the safeguards adopted by many states to ensure that the death penalty is applied fairly, following the reinstatement of capital punishment in 1976. Relying chiefly on evidence drawn from Washington State, this Article asks whether the practice of comparative proportionality review has ensured that there is now a rational basis for distinguishing between those who are sentenced to die and those who are not. An analysis of the trial judge reports employed by the Washington State Supreme Court in reviewing death sentences, as well as the method used by the court in …

Unchecked And Imbalanced? A Critical Reading Of The U.S. Constitution, Madeleine Severin

Cardozo Law Review

No abstract provided.

The Dilution Effect: Federalization, Fair Cross-Sections, And The Concept Of Community, Laura G. Dooley

ExpressO

The question of the relevant community from which a fair cross-section of jurors should be drawn has received little theoretical attention. This article seeks to fill that gap by using communitarian and postmodern theory to give content to the idea of "community" in the fair cross-section context. This analysis is timely and has grave practical importance, given that the federal government is increasingly assuming the prosecution of crime previously dealt with at the state level. This "federalization" of criminal enforcement has the second-order effect of changing the "community" from which criminal juries will be drawn, particularly in urban areas surrounded …

The Legacy Of The Prompt Complaint Requirement, Corroboration Requirement, And Cautionary Instructions On Campus Sexual Assault, Michelle J. Anderson

Working Paper Series

No abstract provided.

Summary Of Allred V. State, 120 Nev. Adv. Op. 47, Hilary Barrett Muckleroy

Nevada Supreme Court Summaries

No abstract provided.

A Deep Breath Before The Plunge: Undoing Miranda's Failure Before It's Too Late, Benjamin D. Cunningham

Mercer Law Review

The Supreme Court's decision in Miranda v. Arizona has been and will be a lightning rod for controversy so long as it remains in effect. The decision has been lauded for its apparent protection of individual dignity from overzealous police and criticized as an unwarranted shackle on legitimate law enforcement techniques. Nevertheless, Miranda has weathered the storms and, thanks to the Supreme Court's decision in Dickerson v. United States, has endured. Unknown to most proponents or detractors, however, Miranda has had little effect on what actually occurs during police interrogations. The reasons for this are varied. First, by creating …

The Sky Is Not Falling—That Which You Feel Is Merely A No. 10 Earthquake—Blakely V. Washington: The Supreme Court Sentences The American Criminal Justice System To Disaster, Bedlam, And Reform, Christopher P. Carrington

University of Arkansas at Little Rock Law Review

No abstract provided.

Federal Sentencing Guidelines, Rosemary T. Cakmis

Mercer Law Review

Despite the passage of almost two decades since the enactment of the United States Sentencing Guidelines ("U.S.S.G."), issues relating to the sentencing guidelines continue to dominate Eleventh Circuit case law. This is no doubt due, at least in part, to the fact that by 2003, the guidelines had been amended 662 times.

Ambiguities within the guidelines regularly lead to differing interpretations of those guidelines among the circuit courts of appeals. These differing interpretations result in further guideline amendments aimed at reconciling the splits among the circuits. The amended guidelines result in new issues of first impression, new interpretations, and new …

Criminal Procedure, Charles E. Cox Jr.

Mercer Law Review

Each year the United States Court of Appeals for the Eleventh Circuit issues numerous decisions concerning the protections provided to criminal defendants by the United States Constitution. This Article surveys decisions issued in 2003 that are likely to be of interest to criminal law practitioners.

Law, Terrorism, And Social Movements: The Tension Between Politics And Security In Germany's Anti-Terrorism Legislation, Shawn Boyne

Cardozo Journal of International and Comparative Law

The article explores Germany's approach to combating terrorism from the late 1960s to the 1980s, emphasizing the interplay between security measures and civil liberties. It argues that political power struggles, rather than the terrorist threat itself, often drove antiterrorism legislation. The analysis highlights how laws such as the Berufsverbot and criminal code revisions were used to suppress dissent, leading to public backlash and eventual reforms. In contrast to the U.S., which framed its post-9/11 response as war, Germany maintained judicial oversight and avoided suspending constitutional rights. Public opinion played a pivotal role in shaping these policies, ultimately fostering a stronger …

Donating "Blood Money": Fundraising For International Terrorism By United States Charities And The Government's Efforts To Constrict The Flow, Montgomery E. Engel

Cardozo Journal of International and Comparative Law

The note examines the U.S. government's use of blocking orders against charitable organizations suspected of supporting terrorism, arguing that while such orders are effective in disrupting terrorist financing, they raise significant concerns about due process, transparency, and the equitable treatment of Muslim-American donors. The author advocates for a shift toward criminal prosecution as a more effective and equitable strategy, balancing national security with civil liberties.

Fletcher's Rethinking: A Memoir, Kyron J. Huigens

Articles

No abstract provided.