Pub Date : 1997-04-01DOI: 10.1525/NCLR.1997.1.1.137
T. Meares
{"title":"Charting Race and Class Differences in Attitudes Towards Drug Legalization and Law Enforcement: Lessons for Federal Criminal Law","authors":"T. Meares","doi":"10.1525/NCLR.1997.1.1.137","DOIUrl":"https://doi.org/10.1525/NCLR.1997.1.1.137","url":null,"abstract":"","PeriodicalId":344882,"journal":{"name":"Buffalo Criminal Law Review","volume":"19 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1997-04-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"129930815","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 1997-04-01DOI: 10.1525/NCLR.1997.1.1.195
R. Joost
The criminal code title of the United States code should be completely rewritten. The National Commission on Reform of Federal Criminal Laws, the Brown Commission, announced that conclusion in 1971. It remains equally valid today. The paper explains the continuing inadequacy of the criminal code title and describes the history of the codification effort. It also focuses on whether criminal law codification could be achieved in the future. In the author's opinion, the substantive criminal laws of the United States could be joined together in an efficient enacted code. To do so, however, will require that lessons be drawn from the unsuccessful effort to enact a federal criminal code from 1972 to 1982. For example, multiple criminal code bills, rather than the Brown Commission recommendation above, were debated in Congress. During the entire period, the issue generated more than 24,000 pages of testimony and exhibits in congressional hearings. In 1979 and 1980, over a period of more than 300 days, the House subcommittee held 157 days of hearings, public meetings, additional hearings, and meetings to revise the draft legislation. As a result, it did not report a bill to the full committee until March 11, 1980, a date that was too late for full committee, rules, floor, and conference committee action. All Congress has to do to avoid such delay is to provide in the commission legislation that the "fast track" rules of section 151 of the Trade Act of 1974 (19 U.S.C. section 2191) shall apply to the final report of the commission. The fast track rules provide, inter alia, that if a bill is not reported from committee 45 days after introduction, it shall be automatically discharged.
{"title":"Federal Criminal Code Reform: Is It Possible","authors":"R. Joost","doi":"10.1525/NCLR.1997.1.1.195","DOIUrl":"https://doi.org/10.1525/NCLR.1997.1.1.195","url":null,"abstract":"The criminal code title of the United States code should be completely rewritten. The National Commission on Reform of Federal Criminal Laws, the Brown Commission, announced that conclusion in 1971. It remains equally valid today. The paper explains the continuing inadequacy of the criminal code title and describes the history of the codification effort. It also focuses on whether criminal law codification could be achieved in the future. In the author's opinion, the substantive criminal laws of the United States could be joined together in an efficient enacted code. To do so, however, will require that lessons be drawn from the unsuccessful effort to enact a federal criminal code from 1972 to 1982. For example, multiple criminal code bills, rather than the Brown Commission recommendation above, were debated in Congress. During the entire period, the issue generated more than 24,000 pages of testimony and exhibits in congressional hearings. In 1979 and 1980, over a period of more than 300 days, the House subcommittee held 157 days of hearings, public meetings, additional hearings, and meetings to revise the draft legislation. As a result, it did not report a bill to the full committee until March 11, 1980, a date that was too late for full committee, rules, floor, and conference committee action. All Congress has to do to avoid such delay is to provide in the commission legislation that the \"fast track\" rules of section 151 of the Trade Act of 1974 (19 U.S.C. section 2191) shall apply to the final report of the commission. The fast track rules provide, inter alia, that if a bill is not reported from committee 45 days after introduction, it shall be automatically discharged.","PeriodicalId":344882,"journal":{"name":"Buffalo Criminal Law Review","volume":"41 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1997-04-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"126861600","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 1997-04-01DOI: 10.1525/NCLR.1997.1.1.67
Nancy E. Marion
{"title":"Symbolic Policies in Clinton's Crime Control Agenda","authors":"Nancy E. Marion","doi":"10.1525/NCLR.1997.1.1.67","DOIUrl":"https://doi.org/10.1525/NCLR.1997.1.1.67","url":null,"abstract":"","PeriodicalId":344882,"journal":{"name":"Buffalo Criminal Law Review","volume":"5 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1997-04-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"134372879","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 1997-04-01DOI: 10.1525/NCLR.1997.1.1.225
P. Robinson
{"title":"Reforming the Federal Criminal Code: A Top Ten List","authors":"P. Robinson","doi":"10.1525/NCLR.1997.1.1.225","DOIUrl":"https://doi.org/10.1525/NCLR.1997.1.1.225","url":null,"abstract":"","PeriodicalId":344882,"journal":{"name":"Buffalo Criminal Law Review","volume":"33 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1997-04-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"128027313","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 1997-04-01DOI: 10.1525/NCLR.1997.1.1.23
Sara Sun Beale
{"title":"What' Law Got To Do With It? The Political, Social, Psychological and Non-Legal Factors Influencing the Development of (Federal) Criminal Law","authors":"Sara Sun Beale","doi":"10.1525/NCLR.1997.1.1.23","DOIUrl":"https://doi.org/10.1525/NCLR.1997.1.1.23","url":null,"abstract":"","PeriodicalId":344882,"journal":{"name":"Buffalo Criminal Law Review","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1997-04-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"131249919","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This article describes and evaluates three competing conceptions of federal criminal-lawmaking. The first, which can be called the legislative supremacy position, conceives of federal crimes as purely legislative in origin. This is the dominant understanding of how federal criminal-lawmaking does and should work. It also happens to be a rank fiction. The second conception of federal criminal-lawmaking can be called the common-law position. It depicts the operative rules of federal criminal law as judicial in derivation in much the way that the operative rules of federal antitrust and labor law clearly are. The common-law conception offers the best description of federal criminal-lawmaking as it currently exists. It is also normatively superior to the conventional legislative-supremacy position, although it is afflicted with some fairly obvious pathologies. The third and final conception of federal criminal-lawmaking can be called the administrative-law position. On this view, defining operative rules of federal criminal law would be the responsibility of the Executive Branch of government, which would carry out this task either by promulgating legally binding rules akin to the Federal Sentencing Guidelines, or by announcing statutory interpretations that courts would be bound to defer to in criminal prosecutions. The administrative conception is not the system of criminal lawmaking that we have or that anyone thinks we have. Nevertheless, it's the system that we ought to have, and one we easily could with only modest doctrinal innovation.
{"title":"Three Conceptions of Federal Criminal-Lawmaking","authors":"D. Kahan","doi":"10.1525/NCLR.1997.1.1.5","DOIUrl":"https://doi.org/10.1525/NCLR.1997.1.1.5","url":null,"abstract":"This article describes and evaluates three competing conceptions of federal criminal-lawmaking. The first, which can be called the legislative supremacy position, conceives of federal crimes as purely legislative in origin. This is the dominant understanding of how federal criminal-lawmaking does and should work. It also happens to be a rank fiction. The second conception of federal criminal-lawmaking can be called the common-law position. It depicts the operative rules of federal criminal law as judicial in derivation in much the way that the operative rules of federal antitrust and labor law clearly are. The common-law conception offers the best description of federal criminal-lawmaking as it currently exists. It is also normatively superior to the conventional legislative-supremacy position, although it is afflicted with some fairly obvious pathologies. The third and final conception of federal criminal-lawmaking can be called the administrative-law position. On this view, defining operative rules of federal criminal law would be the responsibility of the Executive Branch of government, which would carry out this task either by promulgating legally binding rules akin to the Federal Sentencing Guidelines, or by announcing statutory interpretations that courts would be bound to defer to in criminal prosecutions. The administrative conception is not the system of criminal lawmaking that we have or that anyone thinks we have. Nevertheless, it's the system that we ought to have, and one we easily could with only modest doctrinal innovation.","PeriodicalId":344882,"journal":{"name":"Buffalo Criminal Law Review","volume":"33 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1997-01-28","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"134017468","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 1900-01-01DOI: 10.1525/NCLR.1998.1.2.403
A. Simester
It is often said that there must be a voluntary action by the defendant before she may properly be convicted of any offence. In this paper, by contrast, it is argued that action is a dispensable requirement of moral and criminal responsibility. It is sometimes permissible to penalize D without his being an agent in respect of his behavior. Similarly, it may be acceptable on occasion to impose liability for an omission or state of affairs without requiring a positive act by D. In such cases, action is unnecessary. Instead, it is essential to show that the actus reus is voluntary. On the account presented here, moral and criminal responsibility is denied when the actus reus is involuntary -- when the defendant is unable deliberatively to control her behavior so as to prevent the actus reus from occurring. The paper traces the ramifications of this approach for criminal law doctrine, describing two types of cases where control over behavior is lost, as well as the "defence" of impossibility. Philosophical analysis is also considered. Nonetheless, culpability is not by itself sufficient for criminal responsibility. The paper closes by noting that a requirement for action is ordinarily justified by considerations of autonomy.
{"title":"On the So-Called Requirement for Voluntary Action,","authors":"A. Simester","doi":"10.1525/NCLR.1998.1.2.403","DOIUrl":"https://doi.org/10.1525/NCLR.1998.1.2.403","url":null,"abstract":"It is often said that there must be a voluntary action by the defendant before she may properly be convicted of any offence. In this paper, by contrast, it is argued that action is a dispensable requirement of moral and criminal responsibility. It is sometimes permissible to penalize D without his being an agent in respect of his behavior. Similarly, it may be acceptable on occasion to impose liability for an omission or state of affairs without requiring a positive act by D. In such cases, action is unnecessary. Instead, it is essential to show that the actus reus is voluntary. On the account presented here, moral and criminal responsibility is denied when the actus reus is involuntary -- when the defendant is unable deliberatively to control her behavior so as to prevent the actus reus from occurring. The paper traces the ramifications of this approach for criminal law doctrine, describing two types of cases where control over behavior is lost, as well as the \"defence\" of impossibility. Philosophical analysis is also considered. Nonetheless, culpability is not by itself sufficient for criminal responsibility. The paper closes by noting that a requirement for action is ordinarily justified by considerations of autonomy.","PeriodicalId":344882,"journal":{"name":"Buffalo Criminal Law Review","volume":"6 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"114993120","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 1900-01-01DOI: 10.1525/NCLR.2000.3.2.585
David P. Bryden
I want to thank Professors Berger, Thomas, and Wertheimer for their generous remarks. Our few disagreements are all either trivial or adequately discussed in our respective essays. But I will correct a couple of minor misimpressions that I may have created. I agree with Professor Wertheimer that (at least in most contexts) consent is better understood in objective rather than subjective terms. I think that my analysis suggested this, but my terminology probably did not. Perhaps I should have said “lack of desire” instead of “subjective nonconsent.” Concerning drinking, I’m not sure that Wertheimer and I disagree at all, except (apparently) in our hunches about whether, in a “substantial” number of drunken-victim cases, the victim is wholly passive. Naturally, I welcome Professor Berger’s graceful retraction of her remarks about Alston. Professor Berger points out that Schulhofer’s parable about the doctor is not essential to the case for an affirmative-consent rule. I agree that it is not essential, but it may be decisive. At least in the abstract, everyone favors an affirmativeconsent rule in the surgical context. Therefore, if Schulhofer’s analogy is valid, it follows that the same rule should be adopted in the sexual context. Professor Schulhofer himself goes so far as to suggest that the procedure for consent to a rectal probe is analogous to the proper procedure for consent to sex. In other words, he
{"title":"Reason and Guesswork in the Definition of Rape","authors":"David P. Bryden","doi":"10.1525/NCLR.2000.3.2.585","DOIUrl":"https://doi.org/10.1525/NCLR.2000.3.2.585","url":null,"abstract":"I want to thank Professors Berger, Thomas, and Wertheimer for their generous remarks. Our few disagreements are all either trivial or adequately discussed in our respective essays. But I will correct a couple of minor misimpressions that I may have created. I agree with Professor Wertheimer that (at least in most contexts) consent is better understood in objective rather than subjective terms. I think that my analysis suggested this, but my terminology probably did not. Perhaps I should have said “lack of desire” instead of “subjective nonconsent.” Concerning drinking, I’m not sure that Wertheimer and I disagree at all, except (apparently) in our hunches about whether, in a “substantial” number of drunken-victim cases, the victim is wholly passive. Naturally, I welcome Professor Berger’s graceful retraction of her remarks about Alston. Professor Berger points out that Schulhofer’s parable about the doctor is not essential to the case for an affirmative-consent rule. I agree that it is not essential, but it may be decisive. At least in the abstract, everyone favors an affirmativeconsent rule in the surgical context. Therefore, if Schulhofer’s analogy is valid, it follows that the same rule should be adopted in the sexual context. Professor Schulhofer himself goes so far as to suggest that the procedure for consent to a rectal probe is analogous to the proper procedure for consent to sex. In other words, he","PeriodicalId":344882,"journal":{"name":"Buffalo Criminal Law Review","volume":"23 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"123397112","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 1900-01-01DOI: 10.1525/NCLR.2000.3.2.687
Klaus Lüüderssen
A few years ago a new German translation of Dostoyevsky’s Crime and Punishment was published. According to the book jacket, the old translation, which was published under the title Guilt and Atonement, was moralizing and distorted the literal meaning of the original. What is surprising about the novel, however, is the almost total absence of remorse, which could help lead to atonement. Dostoyevsky’s world is harder, his concepts more archaic. Yet the question of punishment remains unresolved to this day. When Dostoyevsky published his novel in 1866, the second phase of the empirically oriented enlightenment—the one influenced by technology and the natural sciences—had just begun in the human sciences, jurisprudence, and in social practices; and it reached, after a small intermezzo at the end of the eighteenth century, criminal policy for the first time with full force. In his own way, Dostoyevsky took a stand, and quite a progressive one at that. In the meantime, the entire spectrum of what is conceivable and researchable about punishment seems to
{"title":"Enlightened Criminal Policy or the Struggle Against Evil","authors":"Klaus Lüüderssen","doi":"10.1525/NCLR.2000.3.2.687","DOIUrl":"https://doi.org/10.1525/NCLR.2000.3.2.687","url":null,"abstract":"A few years ago a new German translation of Dostoyevsky’s Crime and Punishment was published. According to the book jacket, the old translation, which was published under the title Guilt and Atonement, was moralizing and distorted the literal meaning of the original. What is surprising about the novel, however, is the almost total absence of remorse, which could help lead to atonement. Dostoyevsky’s world is harder, his concepts more archaic. Yet the question of punishment remains unresolved to this day. When Dostoyevsky published his novel in 1866, the second phase of the empirically oriented enlightenment—the one influenced by technology and the natural sciences—had just begun in the human sciences, jurisprudence, and in social practices; and it reached, after a small intermezzo at the end of the eighteenth century, criminal policy for the first time with full force. In his own way, Dostoyevsky took a stand, and quite a progressive one at that. In the meantime, the entire spectrum of what is conceivable and researchable about punishment seems to","PeriodicalId":344882,"journal":{"name":"Buffalo Criminal Law Review","volume":"3 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"128981490","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 1900-01-01DOI: 10.1525/NCLR.1999.2.2.947
W. Weyrauch
{"title":"Unconscious Meanings of Crime and Punishment","authors":"W. Weyrauch","doi":"10.1525/NCLR.1999.2.2.947","DOIUrl":"https://doi.org/10.1525/NCLR.1999.2.2.947","url":null,"abstract":"","PeriodicalId":344882,"journal":{"name":"Buffalo Criminal Law Review","volume":"27 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"121501091","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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