Criminal Procedure Commons^™

Cooperation's Cost, Miriam H. Baer

Faculty Scholarship

No abstract provided.

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 …

W(H)Ither The Jury? The Diminishing Role Of The Jury Trial In Our Legal System, Jennifer Walker Elrod

Washington and Lee Law Review

No abstract provided.

Sentencing, Drugs, And Prisons: A Lesson From Ohio, Jelani Jefferson Exum

Faculty Publications

(Excerpt)

Prison overcrowding has become a familiar story. Current data shows that more than 1 in 100 adults in America—over 2 million people—are incarcerated, earning the United States the distinction of having the highest incarceration rate in the world. It should not be a surprise, therefore, that state and federal prisons are reaching and exceeding capacity. Nor should it be a shock that drug offenders take up many of the beds in those overcapacity prisons. Relative to other crimes, drug sentencing in the United States has been increasingly harsh since the 1970s, and the prison population is feeling the effects …

Reassessing Concurrent Tribal–State–Federal Criminal Jurisdiction In Kansas, John J. Francis, Stacy L. Leeds, Aliza Organick, Jelani Jefferson Exum

Faculty Publications

(Excerpt)

Federal Indian Law is frequently described as a jurisdictional quagmire. Depending on the unique history of a given tribe, the extent to which the tribe has retained a territorial boundary or contiguous land-base, and depending on a tribe’s geographic location, a different mix of exclusive or concurrent tribal, state, federal jurisdiction will result. Moreover, the practical realities on the ground often result in one sovereign entity exercising more or less power than the law on the books might otherwise suggest.

In the criminal law context, tribal–state–federal jurisdiction generally rests on the three premises: (1) tribes retain inherent authority to …

What's Happening With Child Pornography Sentencing?, Jelani Jefferson Exum

Faculty Publications

(Excerpt)

On August 26, 2011, the United States Sentencing Commission posted the letters received in response to its request for public comment on its proposed sentencing priorities. Numbered fifth on its list of ten proposed priorities is child pornography sentencing. Among the authors of the public comment letters are the U.S. Department of Justice, the Federal Public Defender, public defenders and other practitioners from the larger legal community, advocacy groups such as Families Against Mandatory Minimums, and non-attorney citizens. Depending on the particular author, the focus of concern regarding child pornography sentences ranged from questioning the severity of the punishment …

Communicating Substance, Jelani Jefferson Exum

Faculty Publications

(Excerpt)

Now that the Federal Sentencing Guidelines are advisory, the U.S. Sentencing Commission has more responsibility than ever to convince sentencing judges of the legitimacy of the Guidelines’ advice. During their mandatory period, the Guidelines enjoyed a captive set of followers—district judges who had limited choices for departing from the applicable Guidelines ranges, even when those judges were unhappy with the sentencing options before them. However, given the freedom that comes with the Guidelines’ current advisory form, sentencing judges are increasingly departing from the applicable Guidelines ranges. Although district judges still are required to calculate and consider the Sentencing Guidelines …

The Political Economy Of Criminal Procedure Litigation, Anthony O'Rourke

Journal Articles

Criminal procedure has undergone several well-documented shifts in its doctrinal foundations since the Supreme Court first began to apply the Constitution’s criminal procedure protections to the States. This Article examines the ways in which the political economy of criminal litigation – specifically, the material conditions that determine which litigants are able to raise criminal procedure claims, and which of those litigants’ cases are appealed to the United States Supreme Court – has influenced these shifts. It offers a theoretical framework for understanding how the political economy of criminal litigation shapes constitutional doctrine, according to which an increase in the number …

Courts Re-Examine The Application Of Goldfinger-Era Electronic Tracking Cases To Law Enforcement Use Of Gps Tracking Devices, Joshua A. Engel

Richmond Public Interest Law Review

GPS tracking devices have become inexpensive, small, and can easily be attached to a vehicle quickly. Law enforcement is increasingly using these devices to track the exact location of a suspect's vehicle over a long period of time. In most instances, relying on Supreme Court cases from the early 1980's, law enforcement has not sought a warrant before using these devices. This paper examines how courts have attempted to apply Supreme Court precedents based on "primitive" tracking devices to modern GPS tracking devices. These precedents established that the use of electronic tracking devices on vehicles did not constitute a search …

Automobile Consent Searches: The Driver's Options In A Lose-Lose Situation, Arthur J. Park

Richmond Public Interest Law Review

"Do you mind if I take a quick look in the vehicle?" This is a question that countless Americans hear every day, but very few citizens understand the ramifications of their answer. How long can the officer keep me here? What if there is something in my car that I do not know about? Can I be arrested if I refuse the search? This article will address the legal context surrounding consent searches of automobiles in order to provide some clarity to drivers and passengers that are put in this lose-lose situation.

Home Is Where The Crime Is, Bennett Capers

Faculty Scholarship

No abstract provided.

Whipping A Game On Fellons: The Atf "Stash House" Cases, Tom Mcgettrick

Public Interest Law Reporter

No abstract provided.

The Price Is Wrong: The City Of Chicago's Dilemma In Funding Jon Burge's Defense, Ryan Carlsen

Public Interest Law Reporter

No abstract provided.

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 …

An Expectation Of Empathy, Steve Leben

Faculty Works

No abstract provided.

Those Who Ignore The Successes Of The Past Suffer Recurrent, Intensifying Crises, William K. Black

Faculty Works

No abstract provided.

Jury Nullification, Race, And The Wire, James M. Keneally

NYLS Law Review

No abstract provided.

Automobile Consent Searches: The Driver's Options In A Lose-Lose Situation, Arthur J. Park

Richmond Journal of Law and the Public Interest

"Do you mind if I take a quick look in the vehicle?" This is a question that countless Americans hear every day, but very few citizens understand the ramifications of their answer. How long can the officer keep me here? What if there is something in my car that I do not know about? Can I be arrested if I refuse the search? This article will address the legal context surrounding consent searches of automobiles in order to provide some clarity to drivers and passengers that are put in this lose-lose situation.

Courts Re-Examine The Application Of Goldfinger-Era Electronic Tracking Cases To Law Enforcement Use Of Gps Tracking Devices, Joshua A. Engel

Richmond Journal of Law and the Public Interest

GPS tracking devices have become inexpensive, small, and can easily be attached to a vehicle quickly. Law enforcement is increasingly using these devices to track the exact location of a suspect's vehicle over a long period of time. In most instances, relying on Supreme Court cases from the early 1980's, law enforcement has not sought a warrant before using these devices. This paper examines how courts have attempted to apply Supreme Court precedents based on "primitive" tracking devices to modern GPS tracking devices. These precedents established that the use of electronic tracking devices on vehicles did not constitute a search …

Race Disparity Under Advisory Guidelines: Dueling Assessments And Potential Responses, Ryan W. Scott

Articles by Maurer Faculty

Dueling studies of race disparity, one by the U.S. Sentencing Commission (USSC, 2010) and an alternative analysis published in this issue by Ulmer, Light, and Kramer (2011), diverge sharply in their methodological choices and in their characterization of trends in federal sentencing. The Commission’s study suggests a marked increase in race disparity, differences in sentencing outcomes between racial groups that cannot be explained by controlling for relevant nonrace factors, after the Supreme Court’s decisions in United States v. Booker (2005) and Gall v. United States (2007). Those decisions rendered the federal Sentencing Guidelines advisory and set a highly deferential standard …

Facing The Unfaceable: Dealing With Prosecutorial Denial In Postconviction Cases Of Actual Innocence, Aviva A. Orenstein

Articles by Maurer Faculty

As this memorial volume illustrates, Fred Zacharias wrote insightfully on many aspects of the legal profession, covering a wide-range of ethical topics and analyzing many aspects of lawyers’ work. He was interested in the lives of lawyers and believed they owed a duty to society beyond an exclusive focus on individual clients’ interests.

This Article develops a question that intrigued Fred: Prosecutors’ duties postconviction to prisoners who might be innocent. Although Fred wrote about a panoply of questions that arise regarding the prosecutor’s duty to “do justice” after conviction, this Article will address one specific area of concern: how and …

How United States V. Jones Can Restore Our Faith In The Fourth Amendment, Erica Goldberg

School of Law Faculty Publications

United States v. Jones, issued in January of this year, is a landmark case that has the potential to restore a property-based interpretation of the Fourth Amendment to prominence. In 1967, the Supreme Court abandoned its previous Fourth Amendment framework, which had viewed the prohibition on unreasonable searches in light of property and trespass laws, and replaced it with a rule protecting the public’s reasonable expectations of privacy. Although the Court may have intended this reasonable expectations test to provide more protection than a test rooted in property law, the new test in fact made the Justices’ subjective views about …

Delay In Process, Denial Of Justice: The Jurisprudence And Empirics Of Speedy Trials In Comparative Perspective, Jayanth K. Krishnan, C. Raj Kumar

Articles by Maurer Faculty

Criminal law scholars regularly maintain that American prisons are overcrowded and that defendants in custody wait long periods of time before having their cases brought to trial. A similar refrain is made of the penal process in India – the world’s largest democracy, an ally of the United States, and a country with a judiciary that has drawn upon American criminal procedure law. In fact, the situation in India is thought to be much worse. Accounts of prisoners languishing behind bars for several years – and sometimes decades – awaiting their day in court are not uncommon. And many Indian …

An Overview Of The Capital Jury Project For Military Practitioners: Aggravation, Mitigation, And Admission Defenses, Eric R. Carpenter

Faculty Publications

No abstract provided.

Localism And Capital Punishment, Stephen F. Smith

Journal Articles

Professor Adam Gershowitz presents an interesting proposal to transfer from localities to states the power to enforce the death penalty. In his view, state-level enforcement would result in a more rationally applied death penalty because states would be much more likely to make capital charging decisions based on desert, without the distorting influence of the severe resource constraints applicable to all but the wealthiest of localities. As well conceived as Professor Gershowitz’s proposal is, however, I remain skeptical that statewide enforcement of the death penalty would be preferable to continued local enforcement. First, Professor Gershowitz underestimates the benefits of localism …

Is The "Post" In Post-Racial The "Blind" In Colorblind?, Ian F. Haney López

Cardozo Law Review

No abstract provided.

Racial Epithets In The Criminal Process, Sheri Lynn Johnson, John H. Blume, Patrick M. Wilson

Cornell Law Faculty Publications

The evidence of modern bias is often difficult to document and, even when documented, still capable of racially neutral interpretations. In contrast, the use of racial epithets is neither subtle nor ambiguous. Prior to the research that generated this article and our representation of two clients whose cases involved racial epithets, we would have assumed that the use of a racial epithet by a decision-maker in a criminal trial would be rare, but that assumption turns out to be wrong. We also would have assumed that the use of an epithet by any of the decision makers would lead to …

“Custody” In Custody: Redefining Miranda Rights In Prison , Maya Dominguez

American University Journal of Gender, Social Policy & the Law

No abstract provided.

The Association Of Adult Businesses With Secondary Effects: Legal Doctrine Social Theory, And Empirical Evidence, Alan C. Weinstein, Richard Mccleary

Cardozo Arts & Entertainment Law Journal

No abstract provided.