Criminal Law Commons^™

Rethinking The Use Of Community Supervision, Cecelia Klingele

Journal of Criminal Law and Criminology

No abstract provided.

Differences In Punitiveness Across Three Cultures: A Test Of American Exceptionalism In Justice Attitudes, Matthew B. Kugler, Friederike Funk, Judith Braun, Mario Gollwitzer, Aaron C. Kay, John M. Darley

Journal of Criminal Law and Criminology

No abstract provided.

The Iron Curtain: Alabama's Practice Of Excluding Inmates From Parole Release Hearings And Its Flawed Underpinnings, Erin Lange Ramamurthy

Journal of Criminal Law and Criminology

No abstract provided.

Desistance And Legitimacy: The Impact Of Offender Notification Meetings On Recidivism Among High Risk Offenders, Andrew V. Papachristos, Danielle M. Wallace, Tracey L. Meares, Jeffrey Fagan

Faculty Scholarship

Objective: Legitimacy-based approaches to crime prevention operate under the assumption that individuals — including violent offenders — are more likely to comply with the law when they believe that the law and its agents are legitimate and act in ways that seem inherently “fair” and “just.” While mounting evidence finds an association between such legitimacy-based programs and reductions in aggregate levels of crime and violence, no study has investigated whether such programs influence individual offending. This study evaluates the effectiveness of one such program — Project Safe Neighborhoods’ (PSN) Offender Notification Meetings — at reducing individual recidivism among a population …

Certainty In A World Of Uncertainty: Proposing Statutory Guidance In Sentencing Juveniles To Life Without Parole., Sonia Mardarewich

The Scholar: St. Mary's Law Review on Race and Social Justice

In Miller v. Alabama, the United States Supreme Court held that mandatory life sentences without parole imposed upon juveniles was unconstitutional. The Court reasoned that the sentence was cruel and unusual punishment in violation of the Eighth Amendment. The Court, however, did not hold it was unconstitutional to sentence a juvenile to life without parole if there was “transferred intent” or “reckless disregard.” Nonetheless, the Court effectively abolished state discretion and required sentencing courts to consider an offender’s youth and attendant characteristics as mitigating circumstances. The Court, however, did not specify what sentencing guidelines should dictate. Thus, states are now …

Transcending The Criminal Law's "One Size Fits All" Response To Domestic Violence, Hannah Brenner

Faculty Scholarship

Domestic violence is no longer a private matter confined within the four walls of the home. The shift from private to public is connected with marked progress within the legal system, which strives to protect victims and hold batterers accountable through a myriad of specific responses that have ranged from attitudinal and logistical shifts from law enforcement to increased attention within legal education to a general acknowledgment of the impact of domestic violence on individual victims, children, families, and the broader community to the passage of federal and state legislation.

The state legislative landscape has historically centered around a very …

The Poverty Defense, Michele E. Gilman

All Faculty Scholarship

Poverty is correlated with crime, but it is widely assumed that it should not be a defense. In the 1970s, Judge David Bazelon challenged this assumption, proposing a rotten social background defense, that is, how growing up under circumstances of severe deprivation can subsequently impact a criminal defendant's mental state and actions. Relatedly, other theorists have posited that poverty should be a defense to crime based on poverty's coercive aspects or because society forfeits its right to condemn when it tolerates significant economic inequality. Critics counter that a poverty defense should not be adopted because it is not only inconsistent …

Confronting Criminal Law’S Violence: The Possibilities Of Unfinished Alternatives, Allegra M. Mcleod

Georgetown Law Faculty Publications and Other Works

Confronting criminal law’s violence calls for an openness to unfinished alternatives — a willingness to engage in partial, in process, incomplete reformist efforts that seek to displace conventional criminal law administration as a primary mechanism for social order maintenance. But despite all indications that the status quo in U.S. criminal law administration is profoundly dysfunctional — an institutional manifestation of the deepest pathologies in our society — contemporary criminal law reform efforts and scholarship focus almost exclusively on relatively limited modifications to the status quo. These modifications may well render criminal law administration more humane, but fail to substitute alternative …

Breaking The Mexican Cartels: A Key Homeland Security Challenge For The Next Four Years, Carrie F. Cordero

Georgetown Law Faculty Publications and Other Works

Although accurate statistics are hard to come by, it is quite possible that 60,000 people have died in the last six-plus years as a result of armed conflict between the Mexican cartels and the Mexican government, amongst cartels fighting each other, and as a result of cartels targeting citizens. And this figure does not even include the nearly 40,000 Americans who die each year from using illegal drugs, much of which is trafficked through the U.S.-Mexican border. The death toll is only part of the story. The rest includes the terrorist tactics used by cartels to intimidate the Mexican people …

Poor People Lose: Gideon And The Critique Of Rights, Paul D. Butler

Georgetown Law Faculty Publications and Other Works

A low income person is more likely to be prosecuted and imprisoned post-Gideon than pre-Gideon. Poor people lose in American criminal justice not because they have ineffective lawyers but because they are selectively targeted by police, prosecutors, and law makers. The critique of rights suggests that rights are indeterminate and regressive. Gideon demonstrates this critique: it has not improved the situation of most poor people, and in some ways has worsened their plight. Gideon provides a degree of legitimacy for the status quo. Even full enforcement of Gideon would not significantly improve the loser status of low-income …

It Doesn't Pass The Sell Test: Focusing On "The Facts Of The Individual Case" In Involuntary Medication Inquiries, Susan A. Mcmahon

Georgetown Law Faculty Publications and Other Works

Criminal defendants who are incompetent to stand trial have a significant liberty interest in refusing the antipsychotic medication that could restore their competency. The Supreme Court cautioned that instances of intrusion upon that right “may be rare,” and, in Sell v. United States, it laid out what it believed to be stringent criteria for when a defendant could be medicated against his will. Yet, since Sell, trial courts have ordered over sixty-three percent of defendants involuntarily medicated. These individuals did not pose a danger to themselves or others, and they were rarely accused of crimes that involved damage …

Gideon At Guantánamo, Neal K. Katyal

Georgetown Law Faculty Publications and Other Works

The right to counsel maintains an uneasy relationship with the demands of trials for war crimes. Drawing on the author’s personal experiences from defending a Guantánamo detainee, the Author explains how Gideon set a baseline for the right to counsel at Guantánamo. Whether constitutionally required or not, Gideon ultimately framed the way defense lawyers represented their clients. Against the expectations of political and military leaders, both civilian and military lawyers vigorously challenged the legality of the military trial system. At the same time, tensions arose because lawyers devoted to a particular cause (such as attacking the Guantánamo trial system) were …

Vulnerability And Just Desert: A Theory Of Sentencing And Mental Illness, E. Lea Johnston

UF Law Faculty Publications

This Article analyzes risks of serious harms posed to prisoners with major mental disorders and investigates their import for sentencing under a just deserts analysis. Drawing upon social science research, the Article first establishes that offenders with serious mental illnesses are more likely than non-ill offenders to suffer physical and sexual assaults, endure housing in solitary confinement, and experience psychological deterioration during their carceral terms. The Article then explores the significance of this differential impact for sentencing within a retributive framework. It first suggests a particular expressive understanding of punishment, capacious enough to encompass foreseeable, substantial risks of serious harm …

Interpersonal Power In The Criminal System, Kimberly A. Thomas

Articles

This Article identifies the workings of interpersonal power in the criminal system and considers the effect of these cases on criminal theory and practice. By uncovering this phenomenon, this Article hopes to spark a legal academic dialogue and inquiry that has, until now, been unspoken. This Article has roots in my former work as a Philadelphia public defender and in my current work as a clinical professor with students who appear in criminal and juvenile court. As an advocate for the poor in a busy courthouse, one of a lawyer's tasks is to discover the multiple "real" stories behind the …

First Things First: Juvenile Justice Reform In Historical Context, David S. Tanenhaus

Scholarly Works

In my remarks today, I will explain how conceptions of children's rights have been used to shape the American juvenile justice system's development. First, I will argue that we should take a long view of this history. Next, I will focus on three specific eras of twentieth-century reform. Finally, I will conclude with a call for more research on the prosecutor's role in administering juvenile justice. This historical perspective, I believe, can help us to answer the challenging question of what children's rights should be.

Mass Incarceration At Sentencing, Anne R. Traum

Scholarly Works

Courts can address the problem of mass incarceration at sentencing. Although some scholars suggest that the most effective response may be through policy and legislative reform, judicial consideration of mass incarceration at sentencing would provide an additional response that can largely be implemented without wholesale reform. Mass incarceration presents a difficult problem for courts because it is a systemic problem that harms people on several scales-individual, family, and community-and the power of courts to address such broad harm is limited. This Article proposes that judges should consider mass incarceration, a systemic problem, in individual criminal cases at sentencing. Sentencing is …

Fighting Cybercrime After United States V. Jones, David C. Gray, Danielle Keats Citron, Liz Clark Rinehart

Faculty Scholarship

In a landmark non-decision last term, five Justices of the United States Supreme Court would have held that citizens possess a Fourth Amendment right to expect that certain quantities of information about them will remain private, even if they have no such expectations with respect to any of the information or data constituting that whole. This quantitative approach to evaluating and protecting Fourth Amendment rights is certainly novel and raises serious conceptual, doctrinal, and practical challenges. In other works, we have met these challenges by engaging in a careful analysis of this “mosaic theory” and by proposing that courts focus …

What Real-World Criminal Cases Tell Us About Genetics Evidence, Deborah W. Denno

Faculty Scholarship

This Article, which is part of a symposium on "Law and Ethics at the Frontier of Genetic Technology," examines an unprecedented experimental study published in Science. The Science study indicated that psychopathic criminal offenders were more likely to receive lighter sentences if a judge was aware of genetic and neurobiological explanations for the offender’s psychopathy. This Article contends that the study’s conclusions derive from substantial flaws in the study’s design and methodology. The hypothetical case upon which the study is based captures just one narrow and unrepresentative component of how genetic and neurobiological information operates, and the study suffers from …

The Right To Plea Bargain With Competent Counsel After Cooper And Frye: Is The Supreme Court Making The Ordinary Criminal Process Too Long, Too Expensive, And Unpredictable In Pursuit Of Perfect Justice, Bruce A. Green

Faculty Scholarship

In Lafler v. Cooper and Missouri v. Frye, the Supreme Court recently ruled in favor of criminal defendants who were deprived of a favorable plea offer because of their lawyers’ professional lapses. In dissent, Justice Scalia complained that “[t]he ordinary criminal process has become too long, too expensive, and unpredictable,” because of the Court’s criminal procedure jurisprudence; that plea bargaining is “the alternative in which...defendants have sought relief,” and that the two new decisions on the Sixth Amendment right to effective representation in plea bargaining would add to the burden on the criminal process. This essay examines several aspects of …

Mass Torts And Universal Jurisdiction, Vivian Grosswald Curran

Articles

The technologies of the present era mean that injuries have become more massive in dimension. Mass torts affect greater numbers of people and larger geographical areas. Consequently, they can cross borders, affecting the populations of multiple countries. One of the two mechanisms in tort law for remedying mass catastrophes. restricted to cases involving jus cogens violations (namely, violations of human rights so grave as to be against international customary law, or the "law of nations"), is universal jurisdiction pursuant to the Alien Tort Statute (ATS).

Despite the distinctive official restriction of universal jurisdiction to the criminal law domain in civilian …