Criminal Law Commons^™

Creating Constitutional Procedure: Frye, Lafler, And Plea Bargaining Reform, Mike Work

Journal of Criminal Law and Criminology

No abstract provided.

Parental Incarceration: What We Know And Where We Need To Go, Christopher Uggen, Suzy Mcelrath

Journal of Criminal Law and Criminology

No abstract provided.

Why So Contrived? Fourth Amendment Balancing, Per Se Rules, And Dna Databases After Maryland V. King, David H. Kaye

Journal of Criminal Law and Criminology

No abstract provided.

"Obtaining" The Right Result: A Novel Interpretation Of The Computer Fraud And Abuse Act That Provides Liability For Insider Theft Without Overbreadth, Kevin Jakopchek

Journal of Criminal Law and Criminology

No abstract provided.

Breaking Free Of The Prison Paradigm: Integrating Restorative Justice Techniques Into Chicago's Juvenile Justice System, Judy C. Tsui

Journal of Criminal Law and Criminology

No abstract provided.

Comparative Criminal Law, Luis E. Chiesa

Contributions to Books

Published as Chapter 47 in The Oxford Handbook of Criminal Law, Markus Dubber & Tatjana Hörnle, eds.

Criminal law is a parochial discipline. Courts and scholars in the English speaking world seldom take seriously the criminal statutes, cases and scholarly writings published in the non-English speaking world. The same is true the other way around. This is unfortunate. Much can be learned from comparing the way in which the world’s leading legal systems approach important questions of criminal theory.

This Chapter introduces the reader to comparative criminal law with the aim of demonstrating how comparative analysis can enrich both domestic …

Forfeiture Of Illegal Gains, Attempts And Implied Risk Preferences, Murat C. Mungan, Jonathan Klick

Scholarly Publications

In the law enforcement literature there is a presumption—supported by some experimental and econometric evidence—that criminals are more responsive to increases in the certainty than the severity of punishment. Under a general set of assumptions, this implies that criminals are risk seeking. We show that this implication is no longer valid when forfeiture of illegal gains and the possibility of unsuccessful attempts are considered. Therefore, when drawing inferences concerning offenders’ attitudes toward risk based on their responses to various punishment schemes, special attention must be paid to whether and to what extent offenders’ illegal gains can be forfeited and whether …

The Special Problem Of Banks And Crime, Gregory M. Gilchrist

University of Colorado Law Review

Federal prosecutors face increasing criticism for their failure to indict large banks and bankers for serious criminal conduct, including allowing violent drug cartels to launder hundreds of millions of dollars, willfully conducting business with rogue nations and terrorists, and manipulating the LIBOR to defraud investors. This Article argues that the non-prosecution of banks is often justified by proper consideration of externalities and that the nonprosecution of bankers is often explained by lack of evidence or the difficulty of white-collar prosecutions generally. Nevertheless, the result is that extremely serious criminal conduct is penalized by mere fines and negotiated terms of probation, …

Murder, Minority, Victims, And Mercy, Aya Gruber

University of Colorado Law Review

Should the jury have acquitted George Zimmerman of Trayvon Martin's murder? Should enraged husbands receive a pass for killing their cheating wives? Should the law treat a homosexual advance as adequate provocation for killing? Criminal law scholars generally answer these questions with a resounding "no." Theorists argue that criminal laws should not reflect bigoted perceptions of African Americans, women, and gays by permitting judges and jurors to treat those who kill racial and gender minorities with undue mercy. According to this view, murder defenses like provocation should be restricted to ensure that those who kill minority victims receive the harshest …

Pursuing Justice For The Child: The Forgotten Women Of In Re Gault, David S. Tanenhaus

Scholarly Works

In this article, I first draw on my recent book The Constitutional Rights of Children to introduce the facts of the case and place the case in the larger context of the history of American juvenile justice. I then focus specifically on the role of four remarkable women in the history of this landmark decision: Marjorie Gault, Gerald's mother; Amelia Lewis, Gerald's lawyer; Lorna Lockwood, an Arizona lawyer who became the first woman to serve as the Chief Justice of a State Supreme Court; and Getrude "Traute" Mainzer, who assisted in the litigation of Gerald's case before the U.S. Supreme …

Using Outcomes To Reframe Guilty Plea Adjudication, Anne R. Traum

Scholarly Works

The Supreme Court’s 2012 decisions in Lafler v. Cooper and Missouri v. Frye lay the groundwork for a new approach to judicial oversight of guilty pleas that considers outcomes. These cases confirm that courts possess robust authority to protect defendants’ Sixth Amendment right to the effective assistance of counsel and that plea outcomes are particularly relevant to identifying and remedying prejudicial ineffective assistance in plea-bargaining. The Court’s reliance on outcome-based prejudice analysis and suggestions for trial court-level reforms to prevent Sixth Amendment violations set the stage for trial courts to take a more active, substantive role in regulating guilty pleas. …

“Exploitation Creep” And Development: A Response To Janie Chuang, Aziza Ahmed

Faculty Scholarship

In her article Exploitation Creep and the Unmaking of Human Trafficking Law, Janie Chuang insightfully describes transformations in the discourse on trafficking as it shifted from sex trafficking to human trafficking, and as human trafficking came to be understood as forced labor, and now modern day slavery. With each of these transformations, the United States government, self-anointed “global sheriff” of anti-trafficking efforts, deepened its emphasis on a prosecution-oriented strategy focused on individual perpetrator accountability. As an alternative trajectory, Chuang identifies and convincingly argues for a labor-rights approach that takes into consideration the structural causes of exploitation in the labor market, …

Democracy Enhancement In Criminal Law And Procedure, Janet Moore

Utah Law Review

There is a democracy deficit at the intersection of crime, race, and poverty. The causes and consequences of hyperincarceration disproportionately affect those least likely to mount an effective oppositional politics: poor people and people of color. This Article breaks new ground by arguing that the democracy deficit calls for a democracy-enhancing theory of criminal law and procedure that modifies traditional justifications of retributivism and deterrence by prioritizing self-governance. Part I contextualizes the argument within cyclical retrenchments in movements for racial and economic justice. Part II sketches the contours of a democracy-enhancing theory. Parts III and IV turn that theoretical lens …

The New Prosecutor’S Dilemma: Prosecutorial Ethics And The Evaluation Of Actual Innocence, Dana Carver Boehm

Utah Law Review

Buoyed by advances in forensic science, the number of postconviction exonerations has significantly risen in the American criminal justice system over the last twenty years. The ethical obligations of prosecutors faced with such claims, however, have not kept pace. Most efforts within district and U.S. attorneys’ offices have been incremental at best, and even those few prosecutors’ offices with more robust “conviction integrity units”—units that affirmatively investigate claims of actual innocence and seek to mitigate the likelihood of wrongful convictions in the first place—suffer from various structural defects. Often a prosecutor’s default posture when faced with a claim of actual …

Criminalizing The Transmission Of Hiv: Consent, Disclosure, And Online Dating, Alexandra Mccallum

Utah Law Review

Ever since Human Immunodeficiency Virus (HIV) was first recognized as a widespread public health problem, policymakers and legal scholars have considered how criminal law should be used to influence the sexual behavior of people with HIV. Surely, HIV is a problem that affects the general health, safety, and welfare of citizens. Thus, as most cases of HIV are transmitted through sexual conduct, states can regulate this conduct pursuant to their police powers. Generally, states that criminalize the transmission of HIV through sexual conduct provide an exception for HIV-positive individuals who disclose their status and obtain consent5 from their partners. However, …

Objective Mens Rea And Attenuated Subjectivism: Guidance From Justice Charron In R. V. Beatty, Palma Paciocco

Articles & Book Chapters

Justin Ronald Beatty was driving on the Trans-Canada Highway on July 23, 2003 when, for no apparent reason, his truck suddenly crossed the solid centre line and collided with an oncoming car, killing three people. Beatty was charged with dangerous operation of a motor vehicle causing death. He was acquitted at trial on the grounds that his momentary lapse of attention was not enough to establish fault. The Crown appealed, and the Court of Appeal ordered a new trial after concluding that the trial judge had misapplied the fault standard. Beatty appealed to the Supreme Court of Canada, which undertook …

Kids Can Change: Reforming South Dakota’S Juvenile Transfer Law To Rehabilitate Children And Protect Public Safety, Wendy Hess

Faculty Publications

South Dakota, like many other states, permits adult criminal prosecution, sentencing, and imprisonment of certain minors who commit a crime. The mechanism which allows prosecution of a child as an adult is referred to as “juvenile transfer,” because the juvenile court’s jurisdiction over the child is transferred to the adult criminal court. The article discusses how the juvenile transfer mechanism developed — both generally and in South Dakota — as well as how it operates today. The author summarizes research findings about the efficacy and fairness of juvenile transfer. Harsh criminal consequences for juveniles are increasingly disfavored as we learn …

From Villa Grimaldi To Guantánamo Bay: Remedying Human Rights Abuses In Chile And The United States, Nadia Shamsi

Cardozo Journal of International and Comparative Law

The article examines the effectiveness of transitional justice mechanisms in addressing human rights abuses, using Chile's experience under Augusto Pinochet as a model. It critiques the U.S. for failing to adopt similar approaches to accountability, particularly in addressing abuses at Guantanamo Bay and other detention centers. The analysis highlights the importance of combining truth commissions, criminal prosecutions, and reparations to achieve justice and promote democratic transition. It argues that the U.S. must align its domestic practices with the international human rights standards it promotes.

Some Thoughts On The Fundamentals Of An Evidence Code From The U.S. American Perspective, Paul F. Rothstein

Georgetown Law Faculty Publications and Other Works

In the U.S. American trial system proof mainly consists of live witnesses presented in open court under oath before the judge, jury, and parties, subject to perjury laws. Cross-examination of the witnesses in that setting is the principal (though not the only) form of testing their reliability. It is for these reasons that we have a rule against hearsay (second-hand reporting in court of what someone has said outside of court).

The Trickle-Down War, Rosa Brooks

Georgetown Law Faculty Publications and Other Works

The history of the European nation-state, wrote political sociologist Charles Tilly, is inextricably bound up with the history of warfare. To oversimplify Tilly’s nuanced and complex arguments, the story goes something like this: As power-holders (originally bandits and local strongmen) sought to expand their power, they needed capital to pay for weapons, soldiers and supplies. The need for capital and new recruits drove the creation of taxation systems and census mechanisms, and the need for more effective systems of taxation and recruitment necessitated better roads, better communications and better record keeping. This in turn enabled the creation of larger and …