Criminal Procedure Commons^™

Predators In Paradise: Puerto Rico's Recent Sex Offender Problems And The Federal Government's Ill Suited Solutions, Adan Soltren

Cardozo Journal of Equal Rights & Social Justice

The note examines the challenges and implications of implementing the Adam Walsh Act (2006) in Puerto Rico, particularly its Sex Offender Registration and Notification Act (SORNA) provisions. It highlights Puerto Rico's noncompliance with SORNA due to its less stringent sex offender laws and the economic and policy concerns surrounding full adoption. The analysis critiques SORNA's one-size-fits-all approach, especially its treatment of juvenile offenders, and proposes tailored solutions for Puerto Rico to address these issues while maintaining public safety.

Cartoons Aren't Real People, Too: Does The Regulation Of Virtual Child Pornography Violate The First Amendment And Criminalize Subversive Thought?, Keisha April

Cardozo Journal of Equal Rights & Social Justice

The note argues that the government's regulation of virtual child pornography, particularly under the Obscene Visual Representations of the Sexual Abuse of Children (OVR) provision of the PROTECT Act, raises significant First Amendment concerns. While the provision aims to protect children, it criminalizes depictions that do not involve real children, undermining free expression. The analysis critiques the OVR provision's overbreadth and vagueness, asserting that it chills artistic expression and fails to serve a compelling government interest. The note advocates for narrowing the provision to focus on actual harm rather than fictional depictions.

Criminal Courts And Procedure, Stephen C. Thaman

All Faculty Scholarship

This chapter provides both a historical and modern perspective on criminal procedure around the world.

Rethinking Voir Dire, Eric R. Carpenter

Faculty Publications

No abstract provided.

Aedpa Mea Culpa, Larry Yackle

Faculty Scholarship

In this essay, the author contends that the Antiterrorism and Effective Death Penalty Act of 1996 [AEDPA] has frustrated both the enforcement of federal rights and legitimate state interests. He lays most of the blame on the Supreme Court's methodology for construing AEDPA's provisions. The Court insists that poorly conceived and drafted provisions must be taken literally, whatever the consequences, and that every provision must be read to change habeas corpus law in some way. This approach has produced unfair, wasteful, and even bizarre results that might have been avoided if the Court had assessed AEDPA more realistically.

Rule 3.8, The Jencks Act, And How The Aba Created A Conflict Between Ethics And The Law On Prosecutorial Disclosure, Kirsten M. Schimpff

American University Law Review

No abstract provided.

The First Amendment’S Borders: The Place Of Holder V. Humanitarian Law Project In First Amendment Doctrine, David Cole

Georgetown Law Faculty Publications and Other Works

In Holder v. Humanitarian Law Project, the Supreme Court’s first decision pitting First Amendment rights against national security interests since the terrorist attacks of September 11, 2001, the Court appears to have radically departed from some of the First Amendment’s most basic principles, including the maxims that speech may not be penalized because of its viewpoint, that even speech advocating crime deserves protection until it constitutes incitement, and that political association is constitutionally protected absent specific intent to further a group’s illegal ends. These principles lie at the core of our political and democratic freedoms, yet Humanitarian Law Project …

The Master Mason: How Professor Baldus Built A Bridge From Learning To Law And The Legacy Of Equal Justice He Leaves Behind, James E. Baker

Georgetown Law Faculty Publications and Other Works

These are Chief Judge Baker’s remarks eulogizing the late Professor David Baldus. Chief Judge Baker observes that Professor Baldus was an extraordinary educator-lawyer who mastered the fields of social science and statistics. He adds that Professor Baldus was diligent in his research and strived to make the law accessible. Chief Judge Baker discusses how Professor Baldus’s research on the death penalty and proportionality review successfully bridged the law and learning, without ever losing sight of compassion.

Cost As A Sentencing Factor: Missouri's Experiment, Chad W. Flanders

All Faculty Scholarship

In sentencing offenders, should judges take into account the different costs of possible punishments? In 2010, Missouri gave sentencing judges, in addition to information about the nature and severity of the offense and the criminal history of the offender, the price tag of various punishments: prison cost about $17,000 a year, compared to probation, which is much cheaper (about $7000 per year). Judges were allowed, even encouraged, to base their sentences on how much it each sentence would cost the state. The move was a subject of considerable national and local controversy.

This essay represents the first sustained look at …

The Penal Order: Prosecutorial Sentencing As A Model For Criminal Justice Reform?, Stephen C. Thaman

All Faculty Scholarship

This chapter traces the history of the penal order from its earliest roots through its consolidation as a normal alternative form of procedure in Germany. It compares the types of penal order procedures found in modern criminal procedure codes, and it compares penal orders with other “consensual” procedural modes that also involve considerable prosecutorial influence in determination of the level of guilt and punishment: diversion, pleas and stipulations of guilt, and abbreviated trials based on the contents of the preliminary investigation dossier. Finally, it explores whether the penal order, could eventually become a model for the consensual resolution of all …

Innocence And Federal Habeas After Aedpa: Time For The Supreme Court To Act, Joseph L. Hoffmann

Articles by Maurer Faculty

No abstract provided.

Post-Racialism And Searches Incident To Arrest, Frank Rudy Cooper

Scholarly Works

For 28 years the Court held that an officer's search incident to arrest powers automatically extended to the entire passenger compartment of a vehicle. In 2009, however, the Arizona v. Gant decision held that officers do not get to search a vehicle incident to arrest unless they satisfy (1) the Chimel v. California Court's requirement that the suspect has access to weapons or evanescent evidence therein or (2) the United States v. Rabinowitz Court's requirement that the officer reasonably believe evidence of the crime of arrest will be found therein. While many scholars read Gant as a triumph for civil …

Film Review: Mississippi Innocence And The Prosecutor’S Guilt, Angela J. Davis

Scholarly Articles in Law Reviews & Journals

Film review of Mississippi Innocence. A documentary film by Joe York. Media and Documentary Projects at the University of Mississippi (2011)

Session One: Using Forensic Medical Evidence In Court, Juan E. Mendez

Scholarly Articles in Law Reviews & Journals

No abstract provided.

Predictive Policing And Reasonable Suspicion, Andrew Ferguson

Scholarly Articles in Law Reviews & Journals

Predictive policing is a new law enforcement strategy to reduce crime by predicting criminal activity before it happens. Using sophisticated computer algorithms to forecast future events from past crime patterns, predictive policing has become the centerpiece of a new smart-policing strategy in several major cities. The initial results have been strikingly successful in reducing crime.This article addresses the Fourth Amendment consequences of this police innovation, analyzing the effect of predictive policing on the concept of reasonable suspicion. This article examines predictive policing in the context of the larger constitutional framework of “prediction” and the Fourth Amendment. Many aspects of current …

"Bad Juror" Lists And The Prosecutor's Duty To Disclose, Ira Robbins

Scholarly Articles in Law Reviews & Journals

Prosecutors sometimes use what are known as "bad juror" lists to exclude particular citizens from jury service. Not only does this practice interfere with an open and fair jury-selection process, thus implicating a defendant's right to be tried by a jury of his or her peers, but it also violates potential jurors' rights to serve in this important capacity. But who is on these lists? And is a prosecutor required to disclose the lists to defense counsel? These questions have largely gone unnoticed by legal analysts. This Article addresses the prosecutor's duty to disclose bad-juror lists. It reviews the federal …

Fourteenth Amendment Originalism, Jamal Greene

Faculty Scholarship

In Baze v. Rees, the Supreme Court rejected a death-row inmate's claim that a state's use of a lethal injection protocol that carried risks of severe pain from improper administration violated the Constitution. Justice Thomas wrote a remarkable concurring opinion, joined by Justice Scalia, in which he argued that the plurality opinion announcing the governing standard for claims of this sort was wrong, and should have hewed more closely to the original understanding of the Eighth Amendment. Justice Thomas wrote that "the Framers intended to prohibit torturous modes of punishment akin to those that formed the historical backdrop of …

Preventing Sex-Offender Recidivism Through Therapeutic Jurisprudence Approaches And Specialized Community Integration, Heather Cucolo, Michael L. Perlin

Articles & Chapters

The public’s panic about the fear of recidivism if adjudicated sex offenders are ever to be released to the community has not subsided, despite the growing amount of information and statistically-reliable data signifying a generally low risk of re-offense. The established case law upholding sex offender civil commitment and containment statutes has rejected challenges of unconstitutionality, and continues to be dominated by punitive undertones. We have come to learn that the tools used to assess offenders for risk and civil commitment are often inaccurate and that meaningful treatment for this population is often unavailable and ineffective. Yet, society continues to …

Reimagining Criminal Prosecution: Toward A Color-Conscious Professional Ethic For Prosecutors, Justin Murray

Articles & Chapters

Prosecutors, like mostAmericans, view the criminal-justice system asfundamentally race neutral. They are aware that blacks are stopped, searched, arrested, and locked up in numbers that are vastly out of proportion to their fraction of the overall population. Yet, they generally assume that this outcome is justified because it reflects the sad reality that blacks commit a disproportionate share of crime in America. They are unable to detect the ways in which their own discretionary choices-and those of other actors in the criminal-justice system, such as legislators, police officers, and jurors-contribute to the staggering and disproportionate incarceration of black Americans. In …

Prosecutors And Professional Regulation, Bruce A. Green

Faculty Scholarship

Prosecutors often express mistrust of professional regulators, their rules and their processes. This may have been more understandable twenty years ago, when prosecutors perceived that the organized bar had been captured by defense lawyers seeking to use professional regulation as a means of imposing limits on criminal investigative authority that the law did not otherwise recognize. Although that criticism no longer has much basis in reality, it has persisted in the rhetoric prosecutors employ in advocacy regarding their professional conduct. This article explores prosecutors’ public attitude toward professional regulation, beginning with a brief account of their responses two decades ago, …