Criminal Procedure Commons^™

Predators In Paradise: Puerto Rico's Recent Sex Offender Problems And The Federal Government's Ill Suited Solutions, Adan Soltren

Cardozo Journal of Equal Rights & Social Justice

The note examines the challenges and implications of implementing the Adam Walsh Act (2006) in Puerto Rico, particularly its Sex Offender Registration and Notification Act (SORNA) provisions. It highlights Puerto Rico's noncompliance with SORNA due to its less stringent sex offender laws and the economic and policy concerns surrounding full adoption. The analysis critiques SORNA's one-size-fits-all approach, especially its treatment of juvenile offenders, and proposes tailored solutions for Puerto Rico to address these issues while maintaining public safety.

Cartoons Aren't Real People, Too: Does The Regulation Of Virtual Child Pornography Violate The First Amendment And Criminalize Subversive Thought?, Keisha April

Cardozo Journal of Equal Rights & Social Justice

The note argues that the government's regulation of virtual child pornography, particularly under the Obscene Visual Representations of the Sexual Abuse of Children (OVR) provision of the PROTECT Act, raises significant First Amendment concerns. While the provision aims to protect children, it criminalizes depictions that do not involve real children, undermining free expression. The analysis critiques the OVR provision's overbreadth and vagueness, asserting that it chills artistic expression and fails to serve a compelling government interest. The note advocates for narrowing the provision to focus on actual harm rather than fictional depictions.

Criminal Courts And Procedure, Stephen C. Thaman

All Faculty Scholarship

This chapter provides both a historical and modern perspective on criminal procedure around the world.

Rethinking Voir Dire, Eric R. Carpenter

Faculty Publications

No abstract provided.

The Prisoners' Property Dilemma: The Proper Approach To Determine Prisoners' Protected Property Interests After Sandin And Castle Rock, Corbin R. Kennelly

Georgia Law Review

The Proper approach to determine when prisoners have
property interests protected by the Due Process Clause is
currently uncertain. The Supreme Court addressed
prisoners' liberty interests in Sandin v. Conner, but lower
courts have split over whether to apply the Sandin test to
prisoners' property interests. Further complicating
matters, the Supreme Court recently addressed property
interests generally in Town of Castle Rock v. Gonzales.
There, the Court seemed to add additional hurdles to the
finding of protected property interests: A statute must
clearly indicate that it gives rise to an entitlement; the
entitlement must have an ascertainable monetary value;
and, …

On The American Paradox Of Laissez Faire And Mass Incarceration, Bernard E. Harcourt

Faculty Scholarship

In The Illusion of Free Markets (Harvard 2011), Professor Bernard Harcourt analyzes the evolution of a distinctly American paradox: in the country that has done the most to promote the idea of a hands-off government, we run the single largest prison complex in the entire world. Harcourt traces this paradox back to the eighteenth century and demonstrates how the presumption of government incompetence in economic affairs has been coupled with that of government legitimacy in the realm of policing and punishing. Harcourt shows how these linked presumptions have fueled the expansion of the carceral sphere in the nineteenth and twentieth …

Fourteenth Amendment Originalism, Jamal Greene

Faculty Scholarship

In Baze v. Rees, the Supreme Court rejected a death-row inmate's claim that a state's use of a lethal injection protocol that carried risks of severe pain from improper administration violated the Constitution. Justice Thomas wrote a remarkable concurring opinion, joined by Justice Scalia, in which he argued that the plurality opinion announcing the governing standard for claims of this sort was wrong, and should have hewed more closely to the original understanding of the Eighth Amendment. Justice Thomas wrote that "the Framers intended to prohibit torturous modes of punishment akin to those that formed the historical backdrop of …

Why Do Criminals Obey The Law? The Influence Of Legitimacy And Social Networks On Active Gun Offenders, Andrew V. Papachristos, Tracey L. Meares, Jeffery Fagan

Faculty Scholarship

Research on procedural justice and legitimacy suggests that compliance with the law is best secured not by mere threat offorce, but by fostering beliefs in the fairness of the legal systems and in the legitimacy of legal actors. To date, however, this research has been based on general population surveys and more banal types of law-violating behavior (such as unpaid parking tickets, excessive noise, etc.). Thus, while we know why the average citizen obeys the law, we do not have similar knowledge about populations most likely to commit serious violent crimes. This study fills that void by using a unique …

Overcriminalization For Lack Of Better Options: A Celebration Of Bill Stuntz, Daniel C. Richman

Faculty Scholarship

The unity of Bill Stuntz's character – his profound integrity – makes it easy to move from a celebration of his friendship (which I’ve treasured since we first met back in 1985) to one of his scholarship, for creativity, wisdom, and humility are strengths not just of Bill himself but of his work. Even as his broad brush strokes have fundamentally advanced our understanding of the interplay between substantive criminal law, criminal procedure, and criminal justice institutions over time, Bill's work – like Bill himself – welcomes and endures sustained engagement. Humility is appropriate for me, too, as I offer …

Aedpa Mea Culpa, Larry Yackle

Faculty Scholarship

In this essay, the author contends that the Antiterrorism and Effective Death Penalty Act of 1996 [AEDPA] has frustrated both the enforcement of federal rights and legitimate state interests. He lays most of the blame on the Supreme Court's methodology for construing AEDPA's provisions. The Court insists that poorly conceived and drafted provisions must be taken literally, whatever the consequences, and that every provision must be read to change habeas corpus law in some way. This approach has produced unfair, wasteful, and even bizarre results that might have been avoided if the Court had assessed AEDPA more realistically.

Rule 3.8, The Jencks Act, And How The Aba Created A Conflict Between Ethics And The Law On Prosecutorial Disclosure, Kirsten M. Schimpff

American University Law Review

No abstract provided.

Possession And Knowledge In The Misuse Of Drugs Act: Nagaenthran A/L K Dharmalingam V. Public Prosecutor, Siyuan Chen, Nathaniel Poon-Ern Khng

Research Collection Yong Pung How School Of Law

When the Court of Appeal rendered the decision of Tan Kiam Peng in 2008, it was unable to come to a conclusive determination of the correct interpretation of s. 18(2) of the Misuse of Drugs Act, a provision pertaining to the presumption of an accused’s knowledge of the nature of the controlled drugs in his possession. This issue was presented to a differently constituted Court of Appeal in Nagaenthran, which seemingly ruled in favour of the narrow interpretation of s. 18(2) as opposed to the broader interpretation. Nagaenthran, however, did not address the questions raised by Tan Kiam Peng vis-à-vis …

Cost As A Sentencing Factor: Missouri's Experiment, Chad W. Flanders

All Faculty Scholarship

In sentencing offenders, should judges take into account the different costs of possible punishments? In 2010, Missouri gave sentencing judges, in addition to information about the nature and severity of the offense and the criminal history of the offender, the price tag of various punishments: prison cost about $17,000 a year, compared to probation, which is much cheaper (about $7000 per year). Judges were allowed, even encouraged, to base their sentences on how much it each sentence would cost the state. The move was a subject of considerable national and local controversy.

This essay represents the first sustained look at …

The Penal Order: Prosecutorial Sentencing As A Model For Criminal Justice Reform?, Stephen C. Thaman

All Faculty Scholarship

This chapter traces the history of the penal order from its earliest roots through its consolidation as a normal alternative form of procedure in Germany. It compares the types of penal order procedures found in modern criminal procedure codes, and it compares penal orders with other “consensual” procedural modes that also involve considerable prosecutorial influence in determination of the level of guilt and punishment: diversion, pleas and stipulations of guilt, and abbreviated trials based on the contents of the preliminary investigation dossier. Finally, it explores whether the penal order, could eventually become a model for the consensual resolution of all …

Requiring Miranda Warnings For The Christmas Day Bomber And Other Terrorists, Malvina Halberstam

Articles

No abstract provided.

Peacemaking & Provocation: A Response To Professor Tracey Jean Boisseau, Dan Subotnik

Scholarly Works

No abstract provided.

The Role Of Defense Counsel In Ensuring A Fair Justice System, Richard Klein

Scholarly Works

Supreme Court decisions are replete with statements about how crucial it is to have a defense attorney represent the person who is accused of crime. Defense counsel may accurately be considered law enforcers. While representing a lone individual against all the power of the state, counsel must “police the police” to determine if there has been an unconstitutional search, a coerced confession, an unlawfully suggestive lineup, or the fabrication of testimony. Defense counsel must attempt to ensure that the prosecutor is adhering to the professional requirement not merely to convict, but to do justice and comply with his obligations to …

Innocence And Federal Habeas After Aedpa: Time For The Supreme Court To Act, Joseph L. Hoffmann

Articles by Maurer Faculty

No abstract provided.

Post-Racialism And Searches Incident To Arrest, Frank Rudy Cooper

Scholarly Works

For 28 years the Court held that an officer's search incident to arrest powers automatically extended to the entire passenger compartment of a vehicle. In 2009, however, the Arizona v. Gant decision held that officers do not get to search a vehicle incident to arrest unless they satisfy (1) the Chimel v. California Court's requirement that the suspect has access to weapons or evanescent evidence therein or (2) the United States v. Rabinowitz Court's requirement that the officer reasonably believe evidence of the crime of arrest will be found therein. While many scholars read Gant as a triumph for civil …

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

Articles & Chapters

Prosecutors, like mostAmericans, view the criminal-justice system asfundamentally 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 Americans. In …