Criminal Law Commons^™

Supermajoritarian Criminal Justice, Aliza Plener Cover

Articles

Democracy is often equated with majority rule. But closer analysis reveals that, in theory and by constitutional design, our criminal justice system should be supermajoritarian, not majoritarian. The Constitution guarantees that criminal punishment may be imposed only when backed by the supermajoritarian-historically, unanimous-approval of a jury drawn from the community. And criminal law theorists' expressive and retributive justifications for criminal punishment implicitly rely on the existence of broad community consensus in favor of imposing it. Despite these constitutional and theoretical ideals, the criminal justice system today is majoritarian at best. Both harsh and contested, it has lost the structural mechanisms …

Fictional Pleas, Thea B. Johnson

Faculty Publications

A fictional plea is one in which the defendant pleads guilty to a crime he has not committed with the knowledge of the defense attorney, prosecutor and judge. With fictional pleas, the plea of conviction is totally detached from the original factual allegations against the defendant. As criminal justice actors become increasingly troubled by the impact of collateral consequences on defendants, the fictional plea serves as an appealing response to this concern. It allows the parties to achieve parallel aims: the prosecutor holds the defendant accountable in the criminal system, while the defendant avoids devastating non-criminal consequences. In this context, …

Judging Judges Fifty Years After – Was Judge Julius Hoffman’S Conduct So Different?, Bennett L. Gershman

Elisabeth Haub School of Law Faculty Publications

In Chicago, Illinois--and in courtrooms across the United States--judicial misconduct has affected trial outcomes as long as there have been trials. While Judge Julius Hoffman's conduct in the “Chicago Eight” trial is an egregious example of judicial behavior toward criminal defendants, this piece's examination of at least ten different categories of misconduct in dozens of cases makes the argument that misbehavior by judges is less of an exception to the rule of impartiality than the thinking public might know. In considering these brazen examples, practitioners and academics alike can evaluate how to best confront the extent to which conduct like …

It's Complicated: The Challenge Of Prosecuting Tncs For Criminal Activity Under International Law, Jena Martin

Faculty & Staff Scholarship

This essay aims to tackle an increasingly thorny and relevant issue: what do you do if a Transnational Corporation (TNC) commits a crime? The question raises a number of challenges, both philosophically and practically. First, what does it mean to prosecute an organization? Although there are some limited examples (the United States’ prosecution of accounting firm Arthur Andersen being among the most note-worthy), we have relatively little precedence regarding what this would entail; how exactly do you put a corporation on trial? Second, practically speaking, where do you hold the trial? This challenge is magnified by the fact that, by …

Fictional Pleas, Thea Johnson

Indiana Law Journal

A fictional plea is one in which a defendant pleads guilty to a crime he has not committed, with the knowledge of the defense attorney, prosecutor, and judge. With fictional pleas, the plea of conviction is detached from the original factual allegations against the defendant. As criminal justice actors become increasingly troubled by the impact of collateral consequences on defendants, the fictional plea serves as an appealing response to this concern. It allows the parties to achieve parallel aims: the prosecutor holds the defendant accountable in the criminal system, while the defendant avoids devastating noncriminal consequences. In this context, the …

Trial Monitoring Of People V. Miti Et Al. (Zambia 2018), Human Rights Institute, Beth Van Schaack

Human Rights Institute

Between September and December 2018, TrialWatch monitored the trial of six
activists in Zambia, who were arrested and charged under the Public Order Act in
connection with an anti-corruption protest they organized in 2017. On December 21, 2018, the judge dismissed the charges and acquitted all six defendants.

Although the trial itself was generally fair, and Judge Mwaka Chigali Mikalile is to be commended in this regard, the proceedings were infected with prosecutorial misconduct in pursuing spurious charges based upon patently insufficient evidence.

Trial Monitoring Of People V. Cansu Pişkin (Turkey 2019), Human Rights Institute, Stephen J. Rapp

Human Rights Institute

Between March and May 2019, TrialWatch monitors under the supervision of the
Columbia Law School Human Rights Clinic monitored the trial of Cansu Pişkin, a
journalist for the Turkish daily paper, Evrensel, in Istanbul, Turkey. Pişkin was charged with “making a public servant into a target for terrorist organizations” in violation of Section 6(1) of Law No. 3713, otherwise known as the Anti-Terror Law, for publishing the prosecutor’s name in her April 5, 2018 article, “Special Prosecutor for the Bosphorus Students.” On May 7, 2019, the Court convicted Pişkin and sentenced her to 10 months’ imprisonment (with the sentence pronouncement …

Derecho Penal Sustantivo, Luis E. Chiesa

Journal Articles

No abstract provided.

Can You Hear Me Now: The Impacts Of Prosecutorial Call Monitoring On Defendants' Access To Justice, Hope L. Demer

South Carolina Law Review

No abstract provided.

Kejahatan Dan Hukuman: Tantangan Filosofis Determinisme-Kausal Terhadap Pertanggungjawaban, Syahrul Fauzul Kabir

Jurnal Hukum & Pembangunan

The existence of free will is required to legitimize criminal responsibility both legally and morally. Criminal responsibility, which was constructed through the concepts of actus reus and mens rea (cartesian-dualism) has been questioned by causal-determinism. As through these concepts moral responsibility and criminal practices, philosophically, are legitimized. Determinism, as a comprehensive worldview, closes the possibility of free will's existence. Contemporary science's findings in the fields of genetics, psychology, and neuroscience are increasingly verifying the determinism's thesis, rather than falsifying it. The law's concept embraces folk-psychology in which every actions are weighed ethically even by those who believe in causal-determinism. The …

Law School News: Ncdc Holds Trial Practice Institute At Rwu Law 06-28-2019, Michael M. Bowden

Life of the Law School (1993- )

No abstract provided.

Introducing Disruptive Technology To Criminal Sanctions: Punishment By Computer Monitoring To Enhance Sentencing Fairness And Efficiency, Mirko Bagaric, Dan Hunter

Brooklyn Law Review

The United States criminal justice system is the most punitive on earth. The total correctional population is nearly seven million, equating to a staggering one in thirty-eight adults. Most of the correctional population comprises offenders who are on parole or probation, and a high portion of these defendants who are on parole or probation reoffend during the sanction period. There has been a growing consensus among lawmakers and the wider community that reforms need to be implemented to reduce the cost of criminal sanctions and to improve their effectiveness. For example, the United States Sentencing Commission has recently proposed an …

Give Me Liberty Or Give Me . . . Alternatives?: Ending Cash Bail And Its Impact On Pretrial Incarceration, Muhammad B. Sardar

Brooklyn Law Review

Every day in the United States, thousands of pretrial defendants are imprisoned due to their inability to afford bail. These individuals have not been convicted of an offense, yet are incarcerated for the crime of being poor. Pretrial incarceration wreaks havoc both on the individual detainee and society at large. Pretrial detainees are more likely to plead guilty, receive higher sentences, and face grave future economic prospects. The cash bail system in particular disproportionately affects racial minorities, furthering the already racially disparate outcomes inherent in the U.S. criminal justice system. From a societal perspective, the increased rate of incarceration due …

Assuring Financial Stability For Survivors Of Domestic Violence: A Judicial Remedy For Coerced Debt In New York’S Family Courts, Megan E. Adams

Brooklyn Law Review

Domestic violence is a national crisis impacting more than one in three women and one in four men. Abuse is often experienced in nonviolent forms, including emotional, verbal and economic abuse. This note focuses on the harms of economic abuse and, specifically, coerced debt. As society’s understanding of the nuances of domestic violence deepens, many states, including New York, have recognized economic abuse as a unique harm and have empowered family courts to adjudicate such abuse. While promising, many states have yet to devise a suitable remedy for such harm. This critical gap leaves far too many survivors of abuse …

Ban The Box: Mediation’S Place In Criminal Reentry And Employment Rights, Shawn Anderson

Pepperdine Dispute Resolution Law Journal

This note will provide general insight into a growing civil rights movement through discussion of Ban the Box, then make the case for mediation as the best alternative for providing a remedy to applicants whose rights have been violated. Mediation can more effectively achieve the goals of Ban the Box by incentivizing applicants to report instances of nonconformity with the law, empowering the applicants to engage in honest discourse with their prospective employers, and combatting the negative stigma surrounding persons with criminal records that often keeps employers from hiring the qualified employees that they need.

Ramos V. Louisiana: Brief Of Law Professors And Social Scientists As Amici Curiae In Support Of Petitioner, Phoebe C. Ellsworth, Richard O. Lempert

Appellate Briefs

Amici are law professors and social scientists whose research and teaching address empirical and constitutional questions about jury unanimity. They have a strong interest in ensuring that this Court is fully informed about the empirical evidence that demonstrates that allowing non-unanimous verdicts in criminal cases undermines the right to a jury trial, as well as the Framers' recognition that a unanimous jury verdict is fundamental to the Sixth Amendment jury-trial right. Accordingly, they also have an interest in ensuring that the Sixth Amendment right to a unanimous jury verdict, which this Court has held is guaranteed in federal criminal trials, …

Maryland Makes New Evidence Postconviction Review Provisions Available To Defendants With Plea Deals, Felicia Langel

Maryland Law Review Online

No abstract provided.

Up To The Task: Utilizing Collaboration To Combat Trafficking In Persons, Claire Schalin

Journal of the National Association of Administrative Law Judiciary

In this article, I will define trafficking and dispel some common myths that people believe about trafficking. This section will explain trafficking’s many forms and will demonstrate how trafficking can be a stationary crime rather than one requiring movement. Next, I will give a history of the legislation surrounding trafficking and common approaches to curbing the trafficking problem including arguments on both sides of decriminalization. In this section, I will present a country comparison on how different countries approach traffickers and victims of trafficking in their efforts to reduce trafficking in general. In addition to analyzing how varying countries address …

Web Of Lives: How Regulating The Dark Web Can Combat Online Human Trafficking, Christopher Campbell

Journal of the National Association of Administrative Law Judiciary

This article argues that one of the ways to appropriately fight online human trafficking is through governmental regulation of the Dark Web. Specifically, this article argues that a new Attaching Criminal Dark Web Statute is the best method to combat human trafficking because it can incentivize prosecutors to use current human trafficking statutes to prosecute traffickers. This proposal can deter traffickers from enslaving people. Additionally, this article shows the evolution of online human trafficking laws, investigation, and prosecution (Section II); demonstrates why current and proposed laws do not effectively address the online human trafficking issue (Sections III and IV); introduces …

The Gendered Burdens Of Conviction And Collateral Consequences On Employment, Joni Hersch, Erin E. Meyers

Journal of Legislation

Ex-offenders are subject to a wide range of employment restrictions that limit the ability of individuals with a criminal background to earn a living. This Article argues that women involved in the criminal justice system likely suffer a greater income-related burden from criminal conviction than do men. This disproportionate burden arises in occupations that women typically pursue, both through formal pathways, such as restrictions on occupational licensing, and through informal pathways, such as employers’ unwillingness to hire those with a criminal record. In addition, women have access to far fewer vocational programs while incarcerated. Further exacerbating this burden is that …