Criminal Law Commons^™

In The Trenches Of Florida’S War On Gangs: A Framework For Prosecuting Florida’S Anti-Gang Sentence Enhancement Provision, Rodrigo M. Caruço

Barry Law Review

This article discusses how the State of Florida prosecutes under the new sentence enhancement provision of Florida’s anti-gang statute. Part I discusses the general history of the provision. Part II analyzes different state approaches to the enhancement provision. Finally, Part III concludes the article with two recommendations. First, a statutory response that provides all courts in the State with clear direction to implement this provision. Second, a judicial approach for Florida courts to consistently implement a provision that is essential to Florida’s war on criminal gangs.

Addict First, Criminal Second – Addiction Fueled Crimes Should Be Ineligible For The Three-Strikes Penalty, Scott Lindquist

Barry Law Review

The author of this article argues that drug addicts who finance their addiction through crime should be ineligible to receive a prison sentence under a recidivist statute like the three-strikes penalty. Part I introduces the problem, addiction and crime among current prisoners reported by the Department of Justice. Part II discusses Gary Ewing, an addict, a criminal, and a third strike offender. The story of Gary Ewing represents the injustices levied upon an addict/criminal by enhanced sentenced statutes like the three-strikes penalty. Part III is a discussion of the history of repeat offender statutes, primarily focusing on the inception of …

Herring V. United States: Mapp's "Artless" Overruling?, Michael Vitiello

Nevada Law Journal

The central thesis of this essay is that, consistent with the “art of overruling,” the Court could have limited Mapp, for example, by extending the good-faith reasonable mistake rationale that animates cases like United States v. Leon. As developed below, the facts of Herring are quite similar to the facts of other cases where the Court upheld police conduct that, although erroneous, seemed reasonable; accordingly, excluding the illegally obtained evidence had no value as a deterrent of future conduct in light of the reasonableness of the police officer's mistake. However, Herring goes much further and points towards a much greater …

A Reintroduction: Survival Skills For Post-Conviction Practice In South Carolina, John H. Blume, Emily C. Paavola

Cornell Law Faculty Publications

Post-conviction practice is an important safeguard against unjust, unconstitutional, and erroneous convictions. Despite the importance of the topic, the subject has historically received scant attention from legal commentators. In 1994, "An Introduction to Post-Conviction Remedies, Practice And Procedure in South Carolina" was published. At the time, very little had been written about the post-conviction remedies available to prisoners in South Carolina, and the article was intended to introduce appointed counsel and pro se inmates to the various post-conviction remedies available. In the forty years since its initial enactment, South Carolina's Post-Conviction Relief (PCR) Act was amended three times, the South …

What Does Graham Mean In Michigan?, Kimberly A. Thomas

Articles

In Graham v. Florida, the United States Supreme Court held that life without parole could not be imposed on a juvenile offender for a nonhomicide crime.1 In this context, the Graham Court extensively discussed the diminished culpability of juvenile criminal defendants, as compared to adults. The Court relied on current scientific research regarding adolescent development and neuroscience. While the narrowest holding of Graham has little impact in Michigan, the science it relies on, and the potential broader implications for adolescents in Michigan, are significant.

Crimes On The Gulf, David M. Uhlmann

Articles

The explosion that rocked the Deepwater Horizon oil rig on April 20, 2010, killed 11 workers and triggered the worst environmental disaster in U.S. history. After six weeks of failed efforts to stop the gushing oil and protect the fragile ecosystem of the Gulf of Mexico and the communities along its shores, President Obama pledged on June 1 that “if our laws were broken . . . we will bring those responsible to justice.”

Reply To Richard A. Leo And Jon B. Gould, Samuel R. Gross, Barbara O'Brien

Articles

The following is a letter to the Ohio State Journal of Criminal Law received from Professors Samuel Gross and Barbara O'Brien, responding to an article published in the Journal in Fall 2009 by Professors Richard Leo and Jon Gould. This letter is followed by a reply from Professors Leo and Gould. Professors Gross and O'Brien did not see the reply prior to the Journal going to press. As we have indicated before, we welcome letters to the Journal from readers on any topic covered in a prior issue. - Editors

The Contradictions Of Juvenile Crime & Punishment, Jeffery Fagan

Faculty Scholarship

Juvenile incarceration in the United States is, at first glance, distinctly different from its adult counterpart. While some juvenile facilities retain the iconic aesthetic of adult incarceration – orange jumpsuits, large cellblocks, uniformed guards, barbed wire, and similar heavy security measures – others have trappings and atmospherics more reminiscent of boarding schools, therapeutic communities, or small college campuses. These compact, benign settings avoid the physical stigmata of institutional life and accord some autonomy of movement and intimacy in relations with staff. They also give primacy to developmentally appropriate and therapeutic interventions.

Social Welfare And Fairness In Juvenile Crime Regulation, Elizabeth S. Scott, Laurence Steinberg

Faculty Scholarship

The question of how lawmakers should respond to developmental differences between adolescents and adults in formulating juvenile crime policy has been the subject of debate for a generation. A theme of the punitive law reforms that dismantled the traditional juvenile justice system in the 1980s and 1990s was that adolescents were not different from adults in any way that was relevant to criminal punishment – or at least that any differences were trumped by the demands of public safety. But this view has been challenged in recent years; scholars and courts have recognized that adolescents, due to their developmental immaturity, …

The Contradictions Of Juvenile Crime & Punishment, Jeffrey Fagan

Faculty Scholarship

This essay explores the contradictions and puzzles of modern juvenile justice, and illustrates the enduring power of the child-saving philosophy of the juvenile court in an era of punitiveness toward offenders both young and old. The exponential growth in incarceration in the U.S. since the 1970s has been more restrained for juveniles than adults, even in the face of a youth violence epidemic that lasted for nearly a decade. Rhetoric has grown harsher in the wake of moral panics about youth crime, juvenile codes now express the language of retribution and incapacitation, yet the growth in incarceration of juveniles was …

Sex Representation On The Bench: Legitimacy And International Criminal Courts, Nienke Grossman

All Faculty Scholarship

This essay examines the relationship between legitimacy and the presence of both male and female judges on international criminal court benches. It argues that sex representation – an approximate reflection of the ratio of the sexes in the general population – on the bench is an important contributor to legitimacy of international criminal courts. First, it proposes that sex representation affects normative legitimacy because men and women bring different perspectives to judging. Consequently, without both sexes, adjudication is inherently biased. Second, even if one rejects the proposition that men and women "think differently", sex representation affects sociological legitimacy because sex …

A Post-Race Equal Protection?, Mario L. Barnes, Erwin Chemerinsky, Trina Jones

Articles

No abstract provided.

Mainstreaming Civil Rights In The Law School Curriculum: Criminal Law And Procedure, Tamara F. Lawson

Articles

No abstract provided.

Preempting Justice: “Precrime” In Fiction And In Fact, Mark C. Niles

Faculty Publications

(Excerpt)

In the opening scene of Steven Spielberg’s 2002 film adaptation of Philip K. Dick’s short story The Minority Report, we see stylistically edited, disjointed images that appear to depict a man murdering two lovers. It is soon made clear that the images are the video representations of precognitive predictions of a future crime that were made by members of a futuristic crime prevention agency.

Later in the film, we see the same man, at home with his wife—the woman he is shown murdering in the earlier images—and it becomes clear that we are watching the last few moments …

Why March To A Uniform Beat? Adding Honesty And Proportionality To The Tune Of Federal Sentencing, Jelani Jefferson Exum

Faculty Publications

(Excerpt)

This Article fills a gap in current scholarship concerning the Federal Sentencing Guidelines ("Guidelines") by bringing together many sentencing concerns and refocusing them on the Guidelines themselves. Since United States v. Booker, in which the Supreme Court demoted the Guidelines from mandatory to advisory status and imposed reasonableness as the appellate standard of review, several scholars have written about the new, advisory Guidelines scheme. Some have focused on the constitutional problems that Booker failed to settle. Others have argued against a presumption of reasonableness for within-Guidelines sentences. For some scholars, the biggest issues with the advisory Guidelines regime …

"Over-Kill": The Ramifications Of Applying New York's Anti-Terrorism Statute Too Broadly, Louis Jim

Faculty Publications

(Excerpt)

On October 31, 2007, a jury in Bronx County, New York convicted Edgar Morales, a gang member, of manslaughter in the first degree, attempted murder in the second degree, criminal possession of a weapon in the second degree, and conspiracy in the second degree. Those convictions arose out of a shooting that occurred on August 18, 2002. That night, Mr. Morales and a group of his friends "showed up uninvited at a christening party at St. Paul's Lutheran Church" in New York City. Sometime that evening, "several people commandeered the disc jockey's microphone, and before long a fight broke …

The Excitement Of Interdictory Ideas: A Response To Professor Anders Walker, Marc O. Degirolami

Faculty Publications

The very first time that I taught criminal law, I would occasionally tell my six-year-old son, Thomas, about selected cases and situations that I had come across. Thomas enjoyed these discussions—more than I would have guessed: he was captivated by the horror of Dudley & Stephens, he was uncomfortably intrigued by shaming punishments, he was appropriately outraged at all manner of outcomes that seemed to him too harsh or too lenient. But most of all, he wanted to test his own burgeoning intuitions about right and wrong, good and evil, the permitted and the forbidden, against my "criminal law stories." …

Prosecutorial Discretion In The Shadow Of Advisory Guidelines And Mandatory Minimums, Michael A. Simons

Faculty Publications

(Excerpt)

Imagine the following rather run-of-the-mill crime spree:

Three young men, ranging in age from eighteen to twenty and without significant criminal histories, get together to rob a convenience store in New York City. They take an unloaded an inoperable gun, go into the store, point the gun at the clerk behind the counter, and take a few hundred dollars from the cash register. Flush with success, they decide to do it again, this time at a jewelry store down the block. One of the young men points the unloaded gun at the store employees, another stands guard by the …

Morality And Markets: A Comment On Predicting Crime, Miriam A. Cherry

Faculty Publications

(Excerpt)

In their article, Predicting Crime, Professors Henderson, Wolfers, and Zitzewitz propose an intriguing and futuristic series of market-based models surrounding the broad topic of crime prevention. Harnessing widely dispersed knowledge among groups of people, including cops on the beat, criminologists, residents of neighborhoods, elected officials, snitches, and possibly even the criminals themselves, the authors posit that prediction markets will help to estimate crime statistics more accurately and therefore result in more efficient deployment of policing resources. Further, they hypothesize that posing particular policy alternatives—for example, the option of eliminating the death penalty—to a widely dispersed market will result …

Making The Punishment Fit The (Computer) Crime: Rebooting Notions Of Possession For The Federal Sentencing Of Child Pornography Offenses, Jelani Jefferson Exum

Faculty Publications

(Excerpt)

Sexual exploitation of children is a real and disturbing problem. However, when it comes to the sentencing of child pornography possessors, the U.S. federal system has a problem, as well. This Article adds to the current, heated discussion on what is happening in the sentencing of federal child pornography possession offenses, why nobody is satisfied, and how much the Federal Sentencing Guidelines are to blame. At the heart of this Article are the forgotten players in the discussion—computers and the Internet—and their role in changing the realities of child pornography possession. This Article argues that computers and the Internet …