Criminal Law Commons^™

Restitution And The Excessive Fines Clause, Kevin Bennardo

Louisiana Law Review

The article offers solutions to further the conversation regarding the U.S. constitution's Eighth Amendment's limits on restitution. Topics discussed include application of Excessive Fines Clause; the case law interpreting the Excessive Fines Clause of the Eighth Amendment; and ways in which Excessive Fines Clause should be applied to restitution in criminal cases.

Hypnosis And Criminal Behavior, John B. Murray, C.M.

The Catholic Lawyer

No abstract provided.

Note: Capital Punishment In New York: A Re-Evaluation

The Catholic Lawyer

No abstract provided.

Sexual Offenses - Legal And Moral Considerations, S. Oley Cutler, S.J.

The Catholic Lawyer

No abstract provided.

To Kill (Or Imprison For Life) A Juvenile: The Implications Of U.S. V. Under Seal Regarding The Proper Use And Exercise Of Judicial Discretion For Sentencing A Juvenile Offender, Andre M. Board

North Carolina Central Law Review

No abstract provided.

Rethinking Victim-Based Statutory Sentencing Enhancements, Kevin Bennardo

Florida State University Law Review

Punishment enhancements that are triggered by some trait of the victim are deeply en-trenched in American criminal statutes. The research underlying this Article identified over 120 distinct traits that a victim could possess that would statutorily enhance the offender’s punishment. These enhancements are often based on an inherent trait of the victim (e.g., age, disability), the victim’s occupation (e.g., law enforcement officers, utility workers), or a non-occupational role-based undertaking (e.g., jurors, visitors at a detention center).

This Article argues that such victim-based statutory enhancements should be eliminated. First, they are dreadfully inegalitarian. These enhancements send the message that society prefers …

A “Second Magna Carta”: The English Habeas Corpus Act And The Statutory Origins Of The Habeas Privilege, Amanda L. Tyler

Notre Dame Law Review

In my own scholarship, Fallon and Meltzer’s work on habeas models prompted me to dig deeper into the historical backdrop that informed ratification of the Suspension Clause and think harder about the relevance of that history for questions of constitutional interpretation. This, in turn, has spurred work that has occupied me for many years since. In the spirit of engaging with my federal courts professor one more time, this Article tells the story of the statutory origins of the habeas privilege—what Blackstone called a “second magna carta”—and argues that any explication of the constitutional privilege and discussion of how …

Federalizing Retroactivity Rules: The Unrealized Promise Of Danforth V. Minnesota And The Unmet Obligation Of State Courts To Vindicate Federal Constitutional Rights, Ruthanne M. Deutsch

Florida State University Law Review

No abstract provided.

Corporate Criminal Minds, Mihailis E. Diamantis

Notre Dame Law Review

In order to commit the vast majority of crimes, corporations must, in some sense, have mental states. Lawmakers and scholars assume that factfinders need fundamentally different procedures for attributing mental states to corporations and individuals. As a result, they saddle themselves with unjustifiable theories of mental state attribution, like respondeat superior, that produce results wholly at odds with all the major theories of the objectives of criminal law.

This Article draws on recent findings in cognitive science to develop a new, comprehensive approach to corporate mens rea that would better allow corporate criminal law to fulfill its deterrent, retributive, and …

The Tyranny Of Small Things, Yxta Maya Murray

Michigan Journal of Race and Law

In this legal-literary essay, I recount a day I spent watching criminal sentencings in an Alhambra, California courthouse, highlighting the sometimes mundane, sometimes despairing, imports of those proceedings. I note that my analysis resembles that of other scholars who tackle state over-criminalization and selective law enforcement. My original addition exists in the granular attention I pay to the moment-by-moment effects of a sometimes baffling state power on poor and minority people. In this approach, I align myself with advocates of the law and literature school of thought, who believe that the study (or, in this case, practice) of literature will …

White Collar Crime, Robert J. Anello, Miriam L. Glaser

Fordham Law Review

This Article will address six different areas of white collar law and procedure: (1) fraud, (2) the Racketeer Influenced & Corrupt Organizations Act (RICO), (3) conspiracy, (4) public corruption, (5) white collar practice, and (6) sentencing. Many of the cases profiled in this Article have driven legal and cultural developments far beyond the federal courts, including the cases of Leona Helmsley, one of New York’s most prominent real estate moguls; the “Mafia Commission,” a take-down of the bosses of the Five Families of La Cosa Nostra; and Abscam, a massive sting operation created by the federal government to expose corrupt …

The First Amendment And The Police In The Digital Age, Kermit V. Lipez

The Journal of Appellate Practice and Process

No abstract provided.

What’S Wrong With Sentencing Equality?, Richard A. Bierschbach, Stephanos Bibas

Articles

Equality in criminal sentencing often translates into equalizing outcomes and stamping out variations, whether race-based, geographic, or random. This approach conflates the concept of equality with one contestable conception focused on outputs and numbers, not inputs and processes. Racial equality is crucial, but a concern with eliminating racism has hypertrophied well beyond race. Equalizing outcomes seems appealing as a neutral way to dodge contentious substantive policy debates about the purposes of punishment. But it actually privileges deterrence and incapacitation over rehabilitation, subjective elements of retribution, and procedural justice, and it provides little normative guidance for punishment. It also has unintended …

Zappers - Technological Tax Fraud In New Hampshire, Richard Thompson Ainsworth

Faculty Scholarship

No other State is as vulnerable to Zappers as is the State of New Hampshire. Zappers and related software programming, Phantom-ware, facilitate an old tax fraud – skimming cash receipts. In this instance skimming is performed with modern electronic cash registers (ECRs). Zappers are a global revenue problem, but to the best of this author’s knowledge they have not been uncovered in New Hampshire. Seen from a global perspective however, it seems unlikely that they are not here.

New Hampshire’s fiscal vulnerability to Zappers comes from its heavy reliance on precisely the industry segment that has been found to be …

War By Legislation: The Constitutionality Of Congressional Regulation Of Detentions In Armed Conflicts, Christopher M. Ford

Northwestern University Law Review

In this essay, Ford considers provisions of the 2016 National Defense Authorization Act (NDAA) which place restrictions on the disposition of detainees held in Guantánamo Bay. These provisions raise substantial separation of powers issues regarding the ability of Congress to restrict detention operations of the Executive. These restrictions, and similar restrictions found in earlier NDAAs, specifically implicate the Executive's powers in foreign affairs and as Commander in Chief. Ford concludes that, with the exception of a similar provision found in the 2013 NDAA, the restrictions are constitutional.

Book Review: Genocide On The Drina River, Iva Vukušić

Genocide Studies and Prevention: An International Journal

No abstract provided.

The American Bar Association's Criminal Justice Mental Health Standards: Revisions For The Twenty-First Century, Christopher Slobogin

Vanderbilt Law School Faculty Publications

In 1981, the American Bar Association ("ABA"), bolstered by a grant from the John D. and Catherine T. MacArthur Foundation, decided to develop standards for governing the involvement of persons with mental disabilities in the criminal justice system. To accomplish this task the ABA established six task forces, each focused on a different topic, and each composed of judges, prosecutors, defense attorneys, law professors, and mental health professionals well-known for their expertise about criminal mental health law. The result, promulgated in 1984 by the ABA's House of Delegates, was more than eighty black letter Criminal Justice Mental Health Standards, accompanied …

Criminalizing “Private” Torture, Tania Tetlow

William & Mary Law Review

This Article proposes a state crime against torture by private actors as a far better way to capture the harm of serious domestic violence. Current criminal law misses the cumulative terror of domestic violence by fracturing it into individualized, misdemeanor batteries. Instead, a torture statute would punish a pattern crime— the batterer’s use of repeated violence and threats for the purpose of controlling his victim. And, for the first time, a torture statute would ban nonviolent techniques committed with the intent to cause severe pain and suffering, including psychological torture, sexual degradation, and sleep deprivation.

Because serious domestic violence routinely …

Better Sex Through Criminal Law: Proxy Crimes, Covert Negligence, And Other Difficulties Of “Affirmative Consent” In The Ali’S Draft Sexual Assault Provisions, Kevin Cole

San Diego Law Review

The American Law Institute’s draft amendments to the Model Penal Code’s sexual assault provisions address the problem of unwanted sex through the use of proxy crimes. The draft forbids sex undertaken in the absence of certain objective indicia of willingness, or in the presence of certain objective indicia of unwillingness, even though the serious harm of sex with an unwilling partner does not always result from those situations. Proxy crimes are sometimes justified, as is the draft’s requirement that an express “no” be respected in the absence of subsequent words or actions by a partner rescinding the “no.” But proxy …

Negotiating The Terms Of Corporate Human Rights Liability Under Federal Law, R. George Wright

San Diego Law Review

This Article first addresses, by way of example, questions of mens rea, or required mental states, through the basic purposes and relevant assumptions underlying general tort and criminal law. Whichever approach the law adopts, with or without negotiation, toward corporate aiding and abetting liability in human-rights-oriented torts cases should at least be generally compatible with these basic purposes and assumptions. Next, this Article addresses several possible approaches to the mens rea issues before adopting a model of negotiation or bargaining bounded by general moral constraints.

Secondly, this Article discusses a number of issues associated with the Alien Tort Statute ATS …