Practice Of Criminal Law Research Articles

Third-Party Interests in Criminal Law

Traditional criminal law theories provide little account of third-party interests injured from punishment of offenders. We define offenses, and the necessity for prosecution, by the culpability and harm caused by criminal conduct, and set the overarching goals of criminal law - deterrence, retribution, or some mixture of the two - as guides for when and how much to punish. Despite that commitment, the practice of criminal law sometimes explicitly accommodates concerns for punishment?s collateral consequences to third parties. Third-party interests now appear in both prosecutorial charging guidelines and judicial sentencing decisions as rationales for leniency. This intermittent concern for collateral harms poses practical problems of defining which third-party interests. It also leads to treating like cases differently. We accommodate third-party interests by moderating prosecution and punishment, but we do so haphazardly and unevenly across the spectrum of criminal practice. Conceptually, mitigation of collateral consequences calls into question both the descriptive accuracy and the prescriptive utility of dominant theories of criminal law, deontological retributivism and deterrence-oriented utilitarianism. Our practical concern for third-party interests signals the necessity of criminal law paying attention to its broader social consequences. Mitigating third-party interests is likely necessary at times to maintain the legitimacy of criminal law, even as conflicting commitments to distributive fairness, retributive justice and crime prevention sometimes necessitate punishment. This essay explores the problems of third-party interests and describes some implications for criminal justice of downgrading the primacy of retributivism and deterrence in order to view criminal law more as a pragmatic, administrative process that accommodates multiple, conflicting policy interests.

Cook County Criminal Law Practice in 1929: A Community's Response to Crime and a Notorious Trial

Cook County Criminal Law Practice in 1929: A Community's Response to Crime and a Notorious Trial

Teaching the Law of Race

For too long, scholars have debated the place of race in the legal academy. Clothed in private silence and public quarrel, the debate rises again in the wake of the duly celebrated publication of Race and Races: Cases and Resources for a Diverse America. Situated at the intersection of civil rights, jurisprudential, and interdisciplinary movements, Race and Races provides a sweeping account of race in American law and society. Interest in this account will be keen for those seeking to understand the theory and practice of race in law, and equally important, in lawyering and ethics. Often stymied, advocacy-grounded efforts to grasp the meaning and take the measure of race in action demand the mapping of law and the lawyering process in race cases along the boundaries of racial identity, racialized narrative, and interracial community. Careful mapping enables lawyers and judges to embrace race when relevant and, conversely, to reject it when inapposite. Elsewhere I have argued that these boundaries starkly demarcate the practice of criminal law, particularly the prosecution and defense of racial violence. Beyond the criminal law, however, the scope and depth of racial boundaries lie largely unmarked. Accordingly, the first purpose of this Book Review is to mark the boundary lines of contemporary sociolegal research on race synthesized by the distinguished editors of Race and Races and tested, indeed sometimes traversed, by the accompanying book reviews in this collection. In addition to framing the bright lines of discussion for this rich collection, the second purpose of this Review is to critique the effort by the editors to set down some rough markers surveying the meaning of racial identity, the content of racialized narrative, and the form of race-neutral and race-conscious representation. Race and Races establishes the groundwork for its analysis by tracing the genealogy and multiplicity of race and racism, splicing race to law, citizenship, culture, and society, and finally, adjoining race to legal and social reform. To integrate these themes, the editors formulate certain guiding principles of criticism. Applied to the sociolegal text of race, these rules of reading urge us to make the implicit explicit and to look for the hidden norm (p. 3). Moreover, they direct us to avoid we/they thinking and remember context (p. 3). Further, they steer us toward justice by contemplating benefits and harm (p. 3). Last, they exhort us to trust intuition (p. 3). Against this backdrop of textual construction and criticism, the Review follows the discrete divisions of the casebook: Part I examines the genealogy of race and racism, Part II analyzes the multiplicity of race and racism, Part III considers race, law, and citizenship, Part IV explores race, culture, and society, and Part V assesses race and reform in legal theory and practice.

Criminal Procedure Entitlements, Professionalism, and Lawyering Norms

This article explores how social norms affect lawyers' and judges' behavior and, thereby, the content of both legal entitlements and the practice of ethics. It draws from several large studies of local criminal law practice. Norms in law practice often conflict with legal entitlements. Yet this article argues that such norms are sometimes defensible and necessary responses to tensions in public values and to conflicts between policymaking institutions. Norms often identify a need for doctrinal change, rather than a need for change in practice to conform with doctrine. In other instances, however, norms neither reconcile such conflicts nor devise efficient options to formal rules. Norms sometimes are rent-seeking actions by lawyers and judges. Further, they can be driven by ideological commitments; norms serve personal visions of just outcomes and fair procedures that conflict with public values. Finally, because lawyers observe norms that conflict with formal entitlements - leading them explicitly to disavow or subvert rules - norms reveal how practitioners revise professionalism notions to accord with actions that undermine both client interests and public values. The article suggests ways courts can respond to norms and surveys strategies for reforming undesirable norms.

Relapse prevention planning principles for criminal law practice.

Relapse prevention planning principles for criminal law practice.

Enduring Principles and Current Crises in Constitutional Criminal Procedure

Akhil Amar informs his readers that he will attempt to analyze the Fourth, Fifth, and Sixth Amendments from the perspectives of text, history, and structure, in order to lay bare their first principles. The first principle is summed up concisely: the Constitution seeks to protect the innocent. My Review Essay will show that Amar's vision of the animating principle behind the Bill of Rights is myopic and his analysis fails to mesh with the empirical world of criminal law practice. My critique breaks down into two general categories. The first concerns his legal and historical analysis. History and wisdom indicate that Amar's animating principle -- the pursuit of truth -- is not the only, or even, perhaps, the most important, principle at work in the Bill of Rights. For example, Amar may be accurate in stating that warrantless searches were not a concern of the framers when the Fourth Amendment was adopted. However, to conclude from this that the Court's current warrant preference is backwards ignores the fact that only a warrant or well delineated exception can effectuate the values underlying the Amendment under current social conditions. This is because the Fourth Amendment was not designed primarily to protect the innocent, but was instead a profoundly anti-government amendment designed to control governmental power. The second category of criticisms I will level concerns whether Amar's suggested reforms will actually take us any closer to his first principle, protecting the innocent, or to others primary principles in the Bill of Rights, such as fairness and equality. I conclude that his suggestions will do neither. For example, elimination of the exclusionary sanction will do little to ensure reliable convictions, as only a small fraction of guilty defendants are released on this basis. However, it will ensure that police officers lack guidance on how to conduct a lawful search, and that minorities and disfavored groups disproportionately suffer from harassment by law enforcement officers. In actuality, the bulk of miscarriages of justice are produced not from any constitutional jurisprudence that Amar will reform, but rather through inaccurate eyewitness testimony, high pressure plea bargaining, defendants' inability to obtain exculpatory evidence from the government, lack of funding for criminal defense attorneys, defendants' inability to adequately investigate the facts, and vague and malleable criminal laws. Yet both Amar and the Court have failed to suggest any clause of our constitution as a remedy for these serious failings. Finally, Amar's proposed first principle fails to address some of the most significant issues in constitutional criminal procedure. These problems, in what I consider to be descending order of importance, concern race relations in law enforcement and the Court's unwillingness to extend either Equal Protection or Fourth Amendment protection to minorities in any useful manner; the ongoing collapse of the criminal/civil divide, rendering the application of the Fourth, Fifth, and Sixth Amendments uncertain; and the excessive and multiple punishments inflicted upon defendants from the combination of federal and state criminal statutory explosions and the lack of any viable protection under present Fifth Amendment Double Jeopardy and Eighth Amendment Excessive Fines and Cruel & Unusual Punishment jurisprudence.

Relapse prevention planning principles for criminal law practice.

Relapse prevention planning principles for criminal law practice.

Moral Reasons for an Intercultural Criminal Law. A Philosophical Attempt

The internationalization of our societal relations has even had an impact on criminal law. While criminal law previously fell almost exclusively within the scope of the responsibilities of individual states, internationalization has affected the practice of criminal law for a long time now. Neither terrorism nor gun‐running nor drug trade nor child prostitution observe national borders. In such a new frame of cross‐cultural legal problems, the paper shows that—insofar as criminal offences can be justified with universal and human rights arguments, as they usually can—moral reasons for an intercultural criminal law can be given.

An Enlightenment Tory in Victorian Scotland: the career of Sir Archibald Alison

In 1840, a two-volume critique of Malthus was published in Edinburgh. It attacked political economists, landlords and industrialists, advocated state-provided poor relief and land ownership by the poor, supported public executions and transportation, colonial possessions and protectionism, and was received with some enthusiasm by the Church of English Quarterly and by Frederick Engels. Its author is the subject of this intellectual and political biography: Sir Archibald Alison, a High Tory Sheriff of Lanarkshire, an Episcopalian whose intellectual and cultural background was the Scottish Enlightenment, and whose main intellectual influence was Adam Smith. Sheriff Alison was also an historian (author of a popular account of the French Revolution), and a prolific essayist for the Tory Blackwood's Edinburgh Magazine. In addition, Alison wrote a two-volume textbook on the principles and practice of Scottish criminal law, a work that has remained relevant to modern practice. This study examines the full range of Alison's work and career. It shows how he represents an interesting link between the Scottish Enlightenment and Victorian conservatism, as his work reveals a consistent appropriation of 18th-century themes. It, therefore, adds a new dimension to the study of ultra-Toryism in the first half of the 19th century.

Gender and Professional Values in the Criminal Bar

ABSTRACT This study is a theoretical application and empirical test of difference theory in the context of private criminal law practice. Difference theory posits that gender is associated with variation in perspectives on justice and morality, and examination of mainstream professional values in the legal system reveals those values to emphasize what are thought to be masculinist values. Hence it is hypothesized that female lawyers will depart from male norms in their expressions of professional values. Results of a survey of practicing lawyers reveals limited support for these theoretical predictions; although male respondents express more extreme advocacy of due process and defendants' rights, women and men differ little in their attitudes toward punishment issues and cynicism regarding defendants.

The expert and the advocate

Anyone acquainted with the practice of criminal law must be conscious of the rapidly increasing dependence both of prosecutions and defences upon expert evidence. The variety of expertise invoked is remarkable: psychiatry, psychology, pathology, paediatrics, haemogenetics, ballistics, textile technology, probability theory, footprints, odontology, voice analysis: this is not even the beginning of an exhaustive list, but merely a recital of some of the disciplines a practitioner might encounter in one fairly typical week. There are several consequences, no doubt, of this acceleration of information, and they include increasing complexity and expense, but I try to focus here on the advocate’s duty in deploying what is now available. The advocate preparing his case must first identify what are the live issues. This is not necessarily straightforward: nor is it always done. But the consequences, if it is not done, in waste of time and resources, are dire. Having identified the issues, he must then ask himself whether he has need of expert guidance on any of them. In doing this he has to bear in mind his responsibility to the Court and (usually) to the public purse. But provided he has been serious in discarding dead issues, and considering the relevance of expert guidance to the live ones, there is a real prospect that he will have met those responsibilities. All this is easily said, but there is a common, almost a structural problem here. How can he know whether the expert will have anything relevant to say unless he first seeks and obtains his opinion? The reality is that he cannot, but it might be a brave or a foolhardy advocate, confronted with expert evidence on the other side on what is a live issue, who would be content to proceed without expert guidance. There may be areas, too, whether there is no expert on the other side, but where the advocate must nonetheless sense the need for one on his. It is one thing, of course, to ask for an expert, another to get one. Most of us have experience of delays stemming from the deliberations of local Legal Aid boards. It is right that they should be diligently protective of public funds, but the delays can

The Position of the Victim in Criminal Procedure — Results of a German Study

In the last few years, the crime victim has moved into the forefront of criminological research and criminal justice policy. This is a worldwide development. In many countries, including the Federal Republic of Germany, victim protection and victim compensation laws have been enacted. The extent to which such legal steps effect an actual improvement of the victims' situation remains largely unexamined. This paper presents the results of a German research project which examined the influence of the recently revised German victim protection law upon criminal law practice. Judges, prosecutors and lawyers were surveyed. A clear resistance by judges and prosecutors was discerned relative to implementing the victim protection rights. For them, the victim is still an outsider and a ‘trouble maker’ within the criminal proceedings. They see increased victim attention as involving additional trouble, effort, time, and possibly creating longer delays in proceedings. In contrast, the attitudes of the attorneys were more favorable toward including the victim in the criminal justice process.

Philosophy of Criminal Law.

This study offers both a penetrating examination and assessment of the theory and principles that underlie contemporary Anglo-American substantive criminal law, and a critique of what the author perceives as basic inadequacies in the accepted orthodox theory of criminal law. Noted legal theorist Douglas N. Husak analyzes the reasoning behind the general principles of modern criminal law theory and demonstrates the relationship between criminal law theory and its contemporary practice. Husak's central argument is that the interpretation and application of the general principles of criminal liability presuppose a moral and political philosophy. He contends that most of the major criminal theorists in Anglo-American legal history (Austin, Holmes, Stephen, Hall, Williams, and others) have supposed that criminal theory can be empirical, scientific, and objective and have emphasized such concepts as action, harm, and causation, which seem amenable to empirical analyses, at the expense of moral and political philosophy. The author argues that revising criminal theory to include moral and political philosophy will make a greater contribution to justice in the principles and practice of criminal law.

The Gender Question in Criminal Law

Over the past decade, both the doctrine and the practice of criminal law have come under intensely critical review by feminist scholars and reformers. The territory under reexamination by or because of feminists spans the problems of women as witnesses, defendants, and prisoners in the criminal justice system; it extends to the situation of women as potential victims and offenders in diverse offense circumstances. Crimes in which the defendant or victim is typically female (e.g., prostitution, rape) are predictable subjects of feminist concern, but attention has extended as well to the dynamics of women's experience (arguably distinctive and certainly neglected) in connection with such offenses as assault, shoplifting, drug offenses, and even armed robbery.Feminist criticism and reform efforts have focused for the most part at the level of specific rules or particular areas of practice. In this paper I want to comment on the structure of the feminist critique and to compare its underlying assumptions to those of criminal law as it has been traditionally understood and practiced. In at least some of its prominent versions, feminism entails orientations and commitments incompatible with those of the received criminal law tradition. To the extent that this is true, criminal law, constructed and expounded almost exclusively by males, can fairly be characterized (descriptively) as “sexist” or at least “gendered” (that is, male-oriented) in its core assumptions. Moving to normative ground, I suggest that if the descriptive claims of the feminist movement are true to any substantial extent, then criminal law – conceived in terms seemingly uncongenial to a large part of our population – would require thorough reexamination.

Rights, Utility, and Crime

John Rawls's A Theory of Justice (1971) launched important jurisprudential rethinking of criminal law doctrine, policy, and practice. The opposing theories of Kant (natural rights) and Bentham (utilitarianism) are brought into new perspective by the human rights analysis flowing from Rawls's innovative theory. The traditional antagonism between the natural rights and utilitarian positions can no longer be sustained at least in its traditional form; the human rights perspective becomes central in relation to decriminalization, mens rea, deterrence, prisons, capital punishment, sentencing, probation, parole and other doctrines, and institutions and principles of punishment under the criminal law.

Challenges for Cause

Although the art of challenging for cause is well-developed in the United States, it is not so fully-developed in Canada. In this paper, what Canadian law there is in the area is examined. The purpose is to show the practitioner what pitfalls toavoid and what procedurestofollow. With the increase in the use of jury trials in Alberta, this subject will become more important, not only in the practice of criminal law but, as well, in the civil law field.

Book Reviews : California Criminal Law Practice, Vols., I and II, Ann Fagan Ginger, G. Blandin Colburn, Siegfried Hesse, and Manuel E. Nestle, eds. Pp. 765 and 941. Berkeley, Calif., California Continuing Education of the Bar, 1964 and 1969. $40 and $45

Book Reviews : California Criminal Law Practice, Vols., I and II, Ann Fagan Ginger, G. Blandin Colburn, Siegfried Hesse, and Manuel E. Nestle, eds. Pp. 765 and 941. Berkeley, Calif., California Continuing Education of the Bar, 1964 and 1969. $40 and $45

Особливості кримінально-правової регламентації призначення покарання за незакінчений злочин за законодавством зарубіжних країн

У статті аналізуються особливості техніко-юридичного оформлення інституту незакінченого злочину в кримінальному праві деяких зарубіжних країн, розглядаються конструкції приготування і замаху, їх правовий зміст, тлумачення і кваліфікаційне значення.

Conflict and Liberty: Some Remarks on the Social Structure of German Politics

T F ANYONE trained in the English tradition of legal thought came | to follow the preparation and conduct of a German criminal case, She would notice a number of telling differences. In fact, each of the three principal characters involved in the great drama of the trialjudge, counsel for the defence, and counsel for the prosecution differs in important details, both in the theory and practice of criminal law, from its English counterpart. The judge, far from being the referee in a contest of parties or, in Erving Goffman's delightful description of this role, a chairman who, as 'go-between', provides his audience (in this case: the jury) with cues as to their appropriate reactions to the evidence and arguments presented, is in fact more like a 'player-manager'and one, of course, who is always on the winning side. A German judge not only guards the rules of the game, but takes an active hand in the examination of witnesses and, above all, withdraws with the jury and guides its deliberations throughout. The judge is a civil servant (Beamter), so is counsel for the prosecution, but counsel for the defence is usually a private citizen. In both the general social and the specific legal context this status tends to become a disadvantage which is aggravated by the fact that often counsel for the defence does not have access to all the evidence before the trial. He is thus hardly an equal opponent of the prosecutor, but rather a beggar for clemency (and indeed the most frequent plea of the defence is that of extenuating circumstances). It is symptomatic that until quite recently counsel for the defence was physically placed, in many German courtrooms, somewhat below counsel for the prosecution whose official title of state attorney (Staatsanwalt) connotes an air of authority. The state attorney's is clearly the crucial role in a German criminal case; it is indeed two roles which may be regarded as barely compatible. Before the trial opens, the state attorney represents what a widely used legal commentary

Informal Relations in the Practice of Criminal Law

The hypothesis that strains from the formal institutional patterns in the practice in the practice of criminal law tend to manifest themselves in informal patterns is deduced from interviews with 101 criminal lawyers and 104 civil lawyers sampled from five jurisdictions. Differences between the two groups are related to functions characterizing the respective types of practice. Cliques and systems of informal relations develop as an effect of strains in starting a practice, in the adversary system of justice, and in rendering service to those accused of crime.