Criminal Procedure Commons^™

The Anomaly Of Entrapment, Jessica A. Roth

Articles

Now in our second decade after 9/11, we are firmly in the prevention era of law enforcement. Faced with the unacceptable consequences of identifying threats too late, government agents are moving aggressively to identify potential terrorists before they strike. Undercover agents and confidential informants necessarily play a large role in such efforts. As a result of such operations, we have seen a number of cases brought to trial in the federal courts in which defendants have asserted the entrapment defense. To date, the defense has not succeeded. However, as a consequence of these cases, the United States Supreme Court may …

The Time Has Come For A Restatement Of Child Sex Abuse, Marci A. Hamilton

Articles

No abstract provided.

Book Review: American Jericho: A Book Review Of The Hanging Judge By Michael A. Ponsor, Giovanna Shay

Faculty Scholarship

No abstract provided.

Kaley V. United States: Sanctifying Grand Jury Determinations And Marginalizing The Right To Counsel Of Choice, Laura Merkey

Maryland Law Review

No abstract provided.

Systemic Barriers To Effective Assistance Of Counsel In Plea Bargaining, Peter A. Joy, Rodney J. Uphoff

Scholarship@WashULaw

In a trio of recent cases, Padilla v. Kentucky, Missouri v. Frye, and Lafler v. Cooper, the U.S. Supreme Court has focused its attention on defense counsel's pivotal role during the plea bargaining process . At the same time that the Court has signaled its willingness to consider ineffective assistance of counsel claims at the plea stage, prosecutors are increasingly requiring defendants to sign waivers that include waiving all constitutional and procedural errors, even unknown ineffective assistance of counsel claims such as those that proved successful in Padilla and Frye. Had Jose Padilla and Galin Frye been forced to sign …

Is The Foreign Intelligence Surveillance Court Really A Rubber Stamp? Ex Parte Proceedings And The Fisc Win Rate, Conor Clarke

Scholarship@WashULaw

One of the most common criticisms of the Foreign Intelligence Surveillance Court is that the court has approved more than 99% of the government’s 33,000 ex parte surveillance requests, a fact cited as extraordinary evidence that the court is nothing more than a rubber stamp. This Essay disputes that popular criticism in two ways. First, I argue that there are good reasons to expect ex parte processes to produce lopsided results, since the government selects applications based in part on the level of oversight the court applies – just as, in most other legal contexts, ‘the decision to litigate’ depends …

Reflections On An Extraordinary Career: Thoughts About Gerald Caplan's Retirement, Michael Vitiello

McGeorge School of Law Scholarly Articles

No abstract provided.

Reforming California Sentencing Practice And Policy: Are We There Yet?, Michael Vitiello

McGeorge School of Law Scholarly Articles

No abstract provided.

From Arbitrariness To Coherency In Sentencing: Reducing The Rate Of Imprisonment And Crime While Saving Billions Of Taxpayer Dollars, Mirko Bagaric

Michigan Journal of Race and Law

Dealing with criminals and preventing crime is a paramount public policy issue. Sentencing law and practice is the means through which we ultimately deal with criminal offenders. Despite its importance and wide-ranging reforms in recent decades, sentencing remains an intellectual and normative wasteland. This has resulted in serious human rights violations of both criminals and victims, incalculable public revenue wastage, and a failure to implement effective measures to reduce crime. This Article attempts to bridge the gulf that exists between knowledge and practice in sentencing and lays the groundwork for a fair and efficient sentencing system. The Article focuses on …

The War On Drugs Is Over (If You Want It): State Drug Courts As An Alternative To Criminal Courts For Low-Level Nonviolent Drug Offenders, Blake Courlang

Cardozo Journal of Conflict Resolution

Part I of this Note describes the social, political, and legal reasons behind the rise of mandatory minimum sentencing in the 1980s and their path towards becoming advisory in the 2000s, as held by the Supreme Court in United States v. Booker. Part II provides a description of drug courts and argues for the use of drug courts as an alternative to the criminal sanctions for all nonviolent, low-level drug offenders. As part of this discussion, this Note examines the use of mandatory minimum sentencing post-Booker and the procedural method of divesting federal jurisdiction of nonviolent, low-level drug offenses …

The Salience Of Social Contextual Factors In Appraisals Of Police Interactions With Citizens: A Randomized Factorial Experiment, Anthony A. Braga, Christopher Winship, Tom Tyler, Jeffrey Fagan, Tracey L. Meares

Faculty Scholarship

Objectives: Prior research indicates that public assessments of the manner in which the police exercise their authority are a key antecedent of judgments about the legitimacy of the police. In this study, the importance of context in influencing people’s assessment of police wrongdoing is examined.

Methods: A randomized factorial experiment was used to test how respondents perceive and evaluate police–citizens interactions along a range of types of situations and encounters. 1,361 subjects were surveyed on factors hypothesized to be salient influences on how citizens perceive and evaluate citizen interactions with police. Subjects viewed videos of actual police – citizen encounters …

Juries And Prior Convictions: Managing The Demise Of The Prior Conviction Exception To "Apprendi", Nancy J. King

Vanderbilt Law School Faculty Publications

This essay offers a menu of procedural alternatives for coping with the potential, some would say inevitable, abandonment of the prior conviction exception to the rule in Apprendi v. New Jersey. It compiles options states have used for years to manage jury prejudice when proof of prior conviction status is required, including partial guilty pleas, partial jury waivers, bifurcation of the trial proceeding, stipulations, and rules limiting what information about the prior conviction may be admitted. These options belie the claim that the exception must be preserved to prevent jury prejudice against defendants. For courts and legislatures interested in anticipating …

Victim Gender And The Death Penalty, Caisa Elizabeth Royer, Amelia Courtney Hritz, Valerie P. Hans, Theodore Eisenberg, Martin T. Wells, John H. Blume, Sheri Lynn Johnson

Cornell Law Faculty Publications

Previous research suggests that cases involving female victims are more likely to result in death sentences. The current study examines possible reasons for this relationship using capital punishment data from the state of Delaware. Death was sought much more for murders of either male or female white victims compared to murders of black male victims. Analyzing capital sentencing hearings in Delaware from 1977-2007 decided by judges or juries, we found that both characteristics of the victims and characteristics of the murders differentiated male and female victim cases. The presence of sexual victimization, the method of killing, the relationship between the …

Inmates For Rent, Sovereignty For Sale: The Global Prison Market, Benjamin Levin

Publications

In 2009, Belgium and the Netherlands announced a deal to send approximately 500 Belgian inmates to Dutch prisons, in exchange for an annual payment of £26 million. The arrangement was unprecedented, but justified as beneficial to both nations: Belgium had too many prisoners and not enough prisons, whereas the Netherlands had too many prisons and not enough prisoners. The deal has yet to be replicated, nor has it triggered sustained criticism or received significant scholarly treatment. This Article aims to fill this void by examining the exchange and its possible implications for a global market in prisoners and prison space. …

Race To Incarcerate: Punitive Impulse And The Bid To Repeal Stand Your Ground, Aya Gruber

Publications

Stand-your-ground laws have come to symbolize, especially for many in the center-to-left, the intense racial injustice of the modern American criminal system. The idea now ingrained in the minds of many racial justice-seekers is that only by narrowing the definition of self-defense (and thereby generally strengthening murder law) can we ensure Trayvon Martin's death was not in vain. However, when the story of Martin's killing first appeared on the national stage, the conversation was not primarily about the overly lenient nature of Florida's self-defense law. It was a multi-faceted dialogue about neighborhood warriors, criminal racial profiling, and especially the racially …

Marked!, Aya Gruber

Publications

No abstract provided.

Murder, Minority Victims, And Mercy, Aya Gruber

Publications

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 …

The Constitutionality Of Negotiated Criminal Judgments In Germany, Thomas Weigend, Jenia I. Turner

Faculty Journal Articles and Book Chapters

In a long-awaited judgment, the German Constitutional Court in 2013 upheld the constitutionality of the 2009 German law authorizing the negotiation of criminal judgments between the court and the parties. In this Article, we provide background on recent developments in “plea bargaining” law and practice in Germany and offer a critique of the Court’s decision.

The Court attempted to rein in negotiated judgments by giving the statute a literal reading, emphasizing the limitations it places on negotiations, and strictly prohibiting any consensual disposition outside the statutory framework. The Court builds its judgment on the notion that the search for truth, …

Teaching “The Wire”: Crime, Evidence, And Kids, Andrea L. Dennis

Scholarly Works

I have a confession: I have only watched Season 1 of The Wire, and it has been many years since I did that. Thus, both my knowledge and pedagogical use of the show are limited. What explanation can I offer for my failings? I am a Maryland native with family who resides in Baltimore City, or Charm City as it is affectionately called. I worked for several years as an assistant federal public defender in Baltimore City. Over time, I have seen the city evolve, and I have seen it chew up and spit out many good people and some …

Give Me Internet Or Give Me Death: Analyzing The Constitutionality Of Internet Restrictions As A Condition Of Supervised Release For Child Pornography Offenders, Laura Tatelman

Cardozo Journal of Equal Rights & Social Justice

The note argues that blanket bans on internet and internet-capable devices as a condition of supervised release for child pornography offenders are unconstitutional under the doctrine of unconstitutional conditions. These bans infringe on fundamental liberties such as speech, association, and access to information, disproportionately affecting offenders’ ability to reintegrate into society. The analysis advocates for a balanced approach that prioritizes public safety while respecting constitutional rights, suggesting alternatives like supervised release rather than outright internet prohibition.