{"title":"Facilitating Fairness: The Judge's Role in the Sixth Amendment Right to Effective Counsel","authors":"John L. Capone","doi":"10.2307/3491313","DOIUrl":"https://doi.org/10.2307/3491313","url":null,"abstract":"","PeriodicalId":47821,"journal":{"name":"Journal of Criminal Law & Criminology","volume":null,"pages":null},"PeriodicalIF":1.8,"publicationDate":"2003-06-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2307/3491313","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"69209240","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"United States v. Drayton: The Need for Bright-Line Warnings during Consensual Bus Searches","authors":"Marissa J. Reich","doi":"10.2307/3491319","DOIUrl":"https://doi.org/10.2307/3491319","url":null,"abstract":"","PeriodicalId":47821,"journal":{"name":"Journal of Criminal Law & Criminology","volume":null,"pages":null},"PeriodicalIF":1.8,"publicationDate":"2003-06-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2307/3491319","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"69209464","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Congress has come close to a drive-by rewrite of sentencing law, and a sentencing revolution may still be in the works. On April 10, 2003, Congress passed the PROTECT bill (popularly known as Amber Alert), which creates a national notification system for child kidnappings. On March 26, while the bill was pending, the House of Representatives passed the Feeney Amendment to the bill. The original amendment was an unprecedented attempt by Congress to rewrite the Sentencing Guidelines by itself without the input or expertise of the Sentencing Commission. The House-Senate conference committee narrowed the amendment, limiting many of its changes to child pornography and child sex cases. The revised amendment nonetheless changes the Sentencing Guidelines substantially, and it instructs the Sentencing Commission to make many more changes within the next six months. The likely result is many fewer Guideline departures, less judicial discretion, and more prosecutorial control. The losers are defendants and judges, and the winners are prosecutors. Prosecutorial leverage to plea bargain will be at an all-time high, resulting in fewer trials, more bargains, and higher sentences. Judges used to check prosecutorial harshness, but now they are increasingly powerless unless prosecutors deign to grant leniency. Part I of this article surveys the scope of the Feeney Amendment, emphasizing the breadth of its changes and how far it reaches beyond child-sex cases. Part II explores how the Feeney Amendment shifts power from district judges to prosecutors. While Congress's desire to reduce sentencing departures is understandable, an evenhanded approach should regulate not only judicial leniency, but also prosecutor-initiated departures. The result is even more imbalance in plea-bargaining power. Part III considers Congress's directives to the Sentencing Commission. Congress has lost trust in the Commission, which led it to rewrite sentencing law on its own without awaiting the Commission's expertise. The result is a blunderbuss solution to the narrower problems caused by a subset of judges. I hope that the Commission will respond by constraining prosecutorial as well as judicial discretion. If however the Commission continues on the present course, it will skew the already lopsided balance of power even more.
{"title":"The Feeney Amendment and the Continuing Rise of Prosecutorial Power to Plea Bargain","authors":"Stephanos Bibas","doi":"10.2139/SSRN.460448","DOIUrl":"https://doi.org/10.2139/SSRN.460448","url":null,"abstract":"Congress has come close to a drive-by rewrite of sentencing law, and a sentencing revolution may still be in the works. On April 10, 2003, Congress passed the PROTECT bill (popularly known as Amber Alert), which creates a national notification system for child kidnappings. On March 26, while the bill was pending, the House of Representatives passed the Feeney Amendment to the bill. The original amendment was an unprecedented attempt by Congress to rewrite the Sentencing Guidelines by itself without the input or expertise of the Sentencing Commission. The House-Senate conference committee narrowed the amendment, limiting many of its changes to child pornography and child sex cases. The revised amendment nonetheless changes the Sentencing Guidelines substantially, and it instructs the Sentencing Commission to make many more changes within the next six months. The likely result is many fewer Guideline departures, less judicial discretion, and more prosecutorial control. The losers are defendants and judges, and the winners are prosecutors. Prosecutorial leverage to plea bargain will be at an all-time high, resulting in fewer trials, more bargains, and higher sentences. Judges used to check prosecutorial harshness, but now they are increasingly powerless unless prosecutors deign to grant leniency. Part I of this article surveys the scope of the Feeney Amendment, emphasizing the breadth of its changes and how far it reaches beyond child-sex cases. Part II explores how the Feeney Amendment shifts power from district judges to prosecutors. While Congress's desire to reduce sentencing departures is understandable, an evenhanded approach should regulate not only judicial leniency, but also prosecutor-initiated departures. The result is even more imbalance in plea-bargaining power. Part III considers Congress's directives to the Sentencing Commission. Congress has lost trust in the Commission, which led it to rewrite sentencing law on its own without awaiting the Commission's expertise. The result is a blunderbuss solution to the narrower problems caused by a subset of judges. I hope that the Commission will respond by constraining prosecutorial as well as judicial discretion. If however the Commission continues on the present course, it will skew the already lopsided balance of power even more.","PeriodicalId":47821,"journal":{"name":"Journal of Criminal Law & Criminology","volume":null,"pages":null},"PeriodicalIF":1.8,"publicationDate":"2003-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67738077","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This article critically reviews the work of the law-and-social norms school of legal scholarship, and its application to criminal law in particular. It argues that this school has gone down a misguided path in purporting to have discovered a distinct and definable approach to law and social behavior. The norms school claims either to reform or fine-tune social science or to add an entirely new phenomenological dimension to social science about criminal law. Yet it performs simplistic extractions from social sciences whose disciplinary rigor it ignores, and claims new disciplinary technique it fails to demonstrate. It is in that sense a symptom of the continuing anxiety of contemporary legal scholarship about its inability to devise a satisfactory alternative to economics or rational choice. The norms school wins short-term political purchase by claiming valence in policy analysis, but it does so in part because, especially in criminal law, a superficial look at norms ties in very easily with short-term cultural, political, and social trends. It also grants itself a normative halo by borrowing from the vocabulary and intellectual capital of the Humanities, but without any of the attention to interpretive complexity the Humanities demands. The article concludes that legal scholars interested in the sources and effects of social norms should return to the well-developed traditions of ethnography and criminology and to a sociology of crime that acknowledges the many-layered effects of labor markets and broad economic forces.
{"title":"Norms and Criminal Law and the Norms of Criminal Law Scholarship","authors":"R. Weisberg","doi":"10.2139/SSRN.426880","DOIUrl":"https://doi.org/10.2139/SSRN.426880","url":null,"abstract":"This article critically reviews the work of the law-and-social norms school of legal scholarship, and its application to criminal law in particular. It argues that this school has gone down a misguided path in purporting to have discovered a distinct and definable approach to law and social behavior. The norms school claims either to reform or fine-tune social science or to add an entirely new phenomenological dimension to social science about criminal law. Yet it performs simplistic extractions from social sciences whose disciplinary rigor it ignores, and claims new disciplinary technique it fails to demonstrate. It is in that sense a symptom of the continuing anxiety of contemporary legal scholarship about its inability to devise a satisfactory alternative to economics or rational choice. The norms school wins short-term political purchase by claiming valence in policy analysis, but it does so in part because, especially in criminal law, a superficial look at norms ties in very easily with short-term cultural, political, and social trends. It also grants itself a normative halo by borrowing from the vocabulary and intellectual capital of the Humanities, but without any of the attention to interpretive complexity the Humanities demands. The article concludes that legal scholars interested in the sources and effects of social norms should return to the well-developed traditions of ethnography and criminology and to a sociology of crime that acknowledges the many-layered effects of labor markets and broad economic forces.","PeriodicalId":47821,"journal":{"name":"Journal of Criminal Law & Criminology","volume":null,"pages":null},"PeriodicalIF":1.8,"publicationDate":"2003-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68754761","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"The contradictions of American capital punishment","authors":"T. Geraghty","doi":"10.5860/choice.41-5614","DOIUrl":"https://doi.org/10.5860/choice.41-5614","url":null,"abstract":"","PeriodicalId":47821,"journal":{"name":"Journal of Criminal Law & Criminology","volume":null,"pages":null},"PeriodicalIF":1.8,"publicationDate":"2003-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"71101223","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Traditionally, criminal procedure scholars have focused on the U.S. Supreme Court's constitutional doctrine. This doctrinal approach has dominated not only scholarship, but also teaching, and it continues to rule the leading casebooks. Younger scholars have begun to broaden criminal procedure scholarship to include non-judicial actors, state law, neglected topics such as plea bargaining and sentencing, and factors such as politics, race, and drugs. These changes have, however, been slow to hit the classroom, as until recently all the major casebooks focused on federal constitutional doctrine. Now, however, two more real-world casebooks are available: Marc Miller & Ronald Wright's Criminal Procedures, and Ronald Allen, William Stuntz, Joseph Hoffman, and Debra Livingston's Comprehensive Criminal Procedure. These two books enrich the mix of teaching materials, adding a welcome diversity of approaches to the existing mix. The doctrinal, constitutional approach is not bad, but these new books supplement this approach in rewarding ways. This review essay compares these two real-word casebooks with five leading doctrinal casebooks. It discusses how the newer approach promises to enrich teaching and scholarship as well. Part I considers the significance of looking beyond judges and case law to other actors and sources of law. Part II discusses Miller & Wright's shift of focus from federal law to state law and practice. Part III examines how factors beyond doctrine come into play: politics, race, and drugs. Part IV then looks at the broadening of focus beyond strictly criminal enforcement to civil and quasi-criminal procedures, such as forfeitures, commitment of sex offenders, and gang-loitering ordinances. Part V addresses the real-world shift away from jury trials toward the hugely important issues of charging, plea bargaining, and sentencing. This review concludes with thoughts about the significance of these changes for criminal procedure teaching and scholarship generally.
{"title":"The Real-World Shift in Criminal Procedure","authors":"Stephanos Bibas","doi":"10.2139/SSRN.345320","DOIUrl":"https://doi.org/10.2139/SSRN.345320","url":null,"abstract":"Traditionally, criminal procedure scholars have focused on the U.S. Supreme Court's constitutional doctrine. This doctrinal approach has dominated not only scholarship, but also teaching, and it continues to rule the leading casebooks. Younger scholars have begun to broaden criminal procedure scholarship to include non-judicial actors, state law, neglected topics such as plea bargaining and sentencing, and factors such as politics, race, and drugs. These changes have, however, been slow to hit the classroom, as until recently all the major casebooks focused on federal constitutional doctrine. Now, however, two more real-world casebooks are available: Marc Miller & Ronald Wright's Criminal Procedures, and Ronald Allen, William Stuntz, Joseph Hoffman, and Debra Livingston's Comprehensive Criminal Procedure. These two books enrich the mix of teaching materials, adding a welcome diversity of approaches to the existing mix. The doctrinal, constitutional approach is not bad, but these new books supplement this approach in rewarding ways. This review essay compares these two real-word casebooks with five leading doctrinal casebooks. It discusses how the newer approach promises to enrich teaching and scholarship as well. Part I considers the significance of looking beyond judges and case law to other actors and sources of law. Part II discusses Miller & Wright's shift of focus from federal law to state law and practice. Part III examines how factors beyond doctrine come into play: politics, race, and drugs. Part IV then looks at the broadening of focus beyond strictly criminal enforcement to civil and quasi-criminal procedures, such as forfeitures, commitment of sex offenders, and gang-loitering ordinances. Part V addresses the real-world shift away from jury trials toward the hugely important issues of charging, plea bargaining, and sentencing. This review concludes with thoughts about the significance of these changes for criminal procedure teaching and scholarship generally.","PeriodicalId":47821,"journal":{"name":"Journal of Criminal Law & Criminology","volume":null,"pages":null},"PeriodicalIF":1.8,"publicationDate":"2002-12-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2139/SSRN.345320","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68594866","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"What Were They Smoking?: The Supreme Court's Latest Step in a Long, Strange Trip through the Fourth Amendment","authors":"D. McKenzie","doi":"10.2307/1144311","DOIUrl":"https://doi.org/10.2307/1144311","url":null,"abstract":"","PeriodicalId":47821,"journal":{"name":"Journal of Criminal Law & Criminology","volume":null,"pages":null},"PeriodicalIF":1.8,"publicationDate":"2002-09-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2307/1144311","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68413986","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"United States v. Oakland Cannabis Buyers' Cooperative: Whatever Happened to Federalism","authors":"Caroline Herman","doi":"10.2307/1144310","DOIUrl":"https://doi.org/10.2307/1144310","url":null,"abstract":"","PeriodicalId":47821,"journal":{"name":"Journal of Criminal Law & Criminology","volume":null,"pages":null},"PeriodicalIF":1.8,"publicationDate":"2002-09-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2307/1144310","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68413932","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Federal Habeas Review: The Supreme Court's Failure to Apply Williams Consistently","authors":"Marry Connell Grubb","doi":"10.2307/1144309","DOIUrl":"https://doi.org/10.2307/1144309","url":null,"abstract":"","PeriodicalId":47821,"journal":{"name":"Journal of Criminal Law & Criminology","volume":null,"pages":null},"PeriodicalIF":1.8,"publicationDate":"2002-09-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2307/1144309","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68413914","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Shafer v. South Carolina: Another missed opportunity to remove juror ignorance as a factor in capital sentencing","authors":"William H. Baarsma","doi":"10.2307/1144308","DOIUrl":"https://doi.org/10.2307/1144308","url":null,"abstract":"","PeriodicalId":47821,"journal":{"name":"Journal of Criminal Law & Criminology","volume":null,"pages":null},"PeriodicalIF":1.8,"publicationDate":"2002-09-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2307/1144308","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68413866","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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