Criminal Law Commons^™

Kwiatkowski: Privacy Protection And Risk Analysis: Losing The Forest In The Telephoto Shots Of The Trees, Steve Coughlan

Articles, Book Chapters, & Popular Press

Checklists of factors are a helpful feature in assisting courts to determine how to find the proper balance in a variety of situations. Properly used they can help to achieve a certain level of uniformity and predictability, though they do not guarantee it. However, it is also important to recognize that checklists are a way of getting at the right analysis — they are not in and of themselves that analysis. Checklists also create the possibility of becoming encumbered in specifics and therefore losing sight of the overall goal. The Supreme Court decided two decades ago that the reasonable expectation …

Realism, Punishment, And Reform, Owen D. Jones, Paul H. Robinson, Robert Kurzban

Vanderbilt Law School Faculty Publications

Professors Donald Braman, Dan Kahan, and David Hoffman, in their article "Some Realism About Punishment Naturalism," to be published in an upcoming issue of the University of Chicago Law Review, critique a series of our articles: Concordance and Conflict in Intuitions of Justice (http://ssrn.com/abstract=932067), The Origins of Shared Intuitions of Justice (http://ssrn.com/abstract=952726), and Intuitions of Justice: Implications for Criminal Law and Justice Policy (http://ssrn.com/abstract=976026). Our reply, here, follows their article in that coming issue.

As we demonstrate, they have misunderstood our views on, and thus the implications of, widespread agreement about punishing the "core" of wrongdoing. Although much of their …

State Taxation Of Marijuana Distribution And Other Federal Crimes, Robert A. Mikos

Vanderbilt Law School Faculty Publications

The financial crisis has breathed new life into proposals to reform marijuana law. Commentators suggest that legalizing and taxing marijuana could generate substantial revenues for beleaguered state governments-as much as $1.4 billion for California alone. This Article, however, suggests that commentators have grossly underestimated the difficulty of collecting a tax on a drug that remains illegal under federal law. The federal ban on marijuana will impair state tax collections for two reasons. First, by giving marijuana distributors powerful incentives to stay small and operate underground, the federal ban will make it difficult for states to monitor marijuana distribution and, consequently, …

Citizens United & Corporate & Human Crime, Christopher Slobogin

Vanderbilt Law School Faculty Publications

Citizens United v. Election Commission held that, like human citizens, corporations can exercise their right to free speech by spending as much money as they like trying to influence elections. This article does not attack or defend that decision, but rather explores its implications for criminal liability, corporate and otherwise. Most prominently, Citizens United reinforces the long-accepted but still highly controversial proposition that, despite their inanimate nature, corporations can be criminally prosecuted for harm they cause. Less obviously, Citizens United provides fodder for those who would soften current corporate liability and punishment rules. Less obviously still, the decision could bolster …

The Complementarity Conundrum: Are We Watching Evolution Or Evisceration?, Michael A. Newton

Vanderbilt Law School Faculty Publications

The Rome Statute nowhere defines the term "complementarity, " but the plain text of Article 1 compels the conclusion that the International Criminal Court was intended to supplement the foundation of domestic punishment for violations of international norms rather than supplant domestic prosecutions. The practice of complementarity may well be the fulcrum supporting the Court's long term legitimacy; and this principle is all the more important because it is designed to provide intellectual leverage to move non-States Party towards treaty accession. The Rome Statute curtails sovereign authority by displacing domestic trials only in exceptional circumstances, and it includes detailed procedural …

The Case Of The Black-Gloved Rapist: Defining The Public Defender's Role In The California Courts, 1913-1948, Sara Mayeux

Vanderbilt Law School Faculty Publications

This essay traces [these] two competing visions of the public defender in California from 1913 to 1948, and examines how and why the second view ultimately prevailed, at least doctrinally. On the ground, some public defenders may have continued to see themselves primarily as public servants, and some trial judges may have endorsed this view. But in the 1940s, California appellate judges rejected the Progressive ideal of the public defender. They constructed the public defender as an opponent of the state, leaving intact (at least in theory) the American adversary system of criminal justice.

In so doing, they followed the …

The Torture Lawyers, Jens David Ohlin

Cornell Law Faculty Publications

One of the longest shadows cast by the Bush Administration’s War on Terror involves the fate of the torture lawyers who authored or signed memoranda regarding torture or enhanced interrogation techniques against detainees. Should they face professional sanction or even prosecution for their involvement? The following Article suggests that their fate implicates some of the deepest questions of criminal law theory and that resolution of the debate requires a fundamental reorientation of the most important areas of justifications and excuses. First, the debate about torture has been overly focused on justifications for torture. This can be explained in part by …

Provoking Change: Comparative Insights On Feminist Homicide Law Reform, Carolyn B. Ramsey

Publications

The provocation defense, which mitigates murder to manslaughter for killings perpetrated in the heat of passion, is one of the most controversial doctrines in the criminal law because of its perceived gender bias; yet most American scholars and lawmakers have not recommended that it be abolished. This Article analyzes trendsetting feminist homicide law reforms, including the abolition of the provocation defense in three Australian jurisdictions, places these reforms in historical context, and assesses their applicability to the United States. It ultimately advocates reintroducing the concept of justified emotion, grounded in modern equality principles and social values, as a requirement for …

A Defensible Defense?: Reexamining Castle Doctrine Statutes, Benjamin Levin

Publications

Recent years have seen a proliferation of so-called “castle doctrine” statutes – laws that provide home dwellers with more expansive self-defense protections if they resort to lethal force in confrontations with intruders. The passage of such laws and subsequent uses of the defense have captured the public imagination, prompting significant media attention, as well as skeptical and critical scholarship from the legal academic community.

Considering the current prevalence of castle laws and the often polarized nature of the debate concerning their application, this Article argues that it is important to excavate the doctrine from the culture wars rhetoric in which …

A Look At Human Trafficking With Professor Kathleen C. Kim, Karen Skinner

Publications

No abstract provided.

Gender, Law, And Detention Policy: Unexpected Effects On The Most Vulnerable Immigrants, Carla L. Reyes

Faculty Journal Articles and Book Chapters

The United States immigration system is especially difficult for children to navigate. Advocates commonly argue that this difficulty stems largely from the poor fit resulting from the application of a system designed for adults to the reality of the child immigrant experience. Advocacy efforts, including those that resulted in changes to detention policy and substantive immigration law regarding Unaccompanied Alien Children (UAC), therefore focus on modifying the system to recognize children as subjects, rather than objects, of immigration law. This article argues that the present efforts to streamline the immigration detention and relief experience for UACs by combating adult-centered bias …

Judging Cruelty, Meghan J. Ryan

Faculty Journal Articles and Book Chapters

he wisdom of the death penalty has recently come under attack in a number of states. This raises the question of whether states’ retreat from the death penalty, or other punishments, will pressure other states - either politically or constitutionally - to similarly abandon the punishment. Politically, states may succumb to the trend of discontinuing a punishment. Constitutionally, states may be forced to surrender the punishment if it is considered cruel, and, as a result of a large number of states renouncing it, the punishment also becomes unusual. If a punishment is thus found to be both cruel and unusual, …

Does The Eighth Amendment Punishments Clause Prohibit Only Punishments That Are Both Cruel And Unusual, Meghan J. Ryan

Faculty Journal Articles and Book Chapters

There is a great struggle in the United States between proponents of the death penalty and death penalty abolitionists who believe that the practice is cruel and even unconstitutional. Although the punishment of death is enshrined in the Fifth and Fourteenth Amendments of the Constitution, the Supreme Court seems to have followed its moral compass in chipping away at the death penalty because of the cruelty of the practice. The Court's struggle between the text of the Constitution and its moral inclinations in the death penalty context has resulted in an inconsistent and confusing Eighth Amendment Punishments Clause jurisprudence. While …

Legal Ethics In International Criminal Defense, Jenia I. Turner

Faculty Journal Articles and Book Chapters

This paper examines the new and complex dilemmas facing defense attorneys who represent clients before international criminal courts. It argues that the unique features and goals of international criminal trials demand a distinct approach to resolving some of these ethical dilemmas. In particular, the goals of international trials are broader and often more political than those of ordinary domestic trials, and the applicable procedures are a unique hybrid of the inquisitorial and adversarial traditions. Moreover, some of the justifications for aggressive defense at the domestic level - such as discouraging disengaged advocacy and protesting overly harsh punishments - are less …

When Family Matters, Alafair Burke

Hofstra Law Faculty Scholarship

In Privilege or Punish: Criminal Justice and the Challenge of Family Ties, Dan Markel, Jennifer Collins, and Ethan Leib make an important contribution to the growing literature on criminal law and families by documenting the ways that criminal law advantages and burdens actors based on familial status and identifying the potential harms that are unleashed when criminal law recognizes family status. This Feature seeks to complement that contribution by situating the authors’ observations within the context of two considerations beyond Privilege or Punish’s immediate focus: chronological trends and the practical realities that can shape application of formal law. By distinguishing …

Methademic: Drug Panic In An Age Of Ambivalence, Deborah Ahrens

Faculty Articles

The story of criminal sanctions in modern America is a familiar-and depressing narrative. According to the narrative, we live in an era where the dynamics of popular politics, the practices of the media, and the (often racialized) anxieties of modern life combine to create a one-way ratchet, in which we identify perceived new threats to public order and respond unthinkingly with harsh new criminal sanctions. On the surface, the wave of concern over methamphetamine that swept the nation in the middle part of this decade followed this script, as a media panic led to substantial popular concern and significant new …

The Disregarding Of The Rehabilitative Spirit Of Juvenile Codes: Addressing Resentencing Hearings In Blended Sentencing Schemes, Grace Shear

Kentucky Law Journal

No abstract provided.

Humonetarianism: The New Correctional Discourse Of Scarcity, Hadar Aviram

Faculty Scholarship

No abstract provided.

Dangerousness, Risk, And Release, Hadar Aviram, Valerie Kraml, Nicole Schmidt

Faculty Scholarship

No abstract provided.

Reconceptualizing Restorative Justice, Kate Bloch

Faculty Scholarship

No abstract provided.