Berkeley Journal of Criminal Law最新文献

{"title":"Booker's Impact on the Standard of Review Governing Supervised Release and Probation Revocation Sentences","authors":"L. Simonton","doi":"10.15779/Z381W4W","DOIUrl":"https://doi.org/10.15779/Z381W4W","url":null,"abstract":"Traditionally, federal appellate courts have applied a \"plainly unreasonable\" standard of review to appeals of probation and supervisedrelease revocation sentences. This standard is found in 18 U.S.C. § 3742(e), which contains review standards for all federal sentences and provides that the \"plainly unreasonable\" standard applies specifically to sentences for which there are no Sentencing Guidelines. Because the Guidelines dealing with postrevocation sentences are, and have always been, advisory policy statements, appellate courts have almost universally determined that they should apply the \"plainly unreasonable\" standard to such sentences. United States v. Booker] potentially affected this standard because it made the entire Guidelines scheme advisory by severing and excising both 18 U.S.C. § 3553(b), the provision requiring district courts to apply the Guidelines in a mandatory fashion, and § 3742(e). In place of § 3742(e), Booker explained that appellate courts should apply a reasonableness standard to their review of sentencing decisions. Since Booker, several appellate courts have considered whether this new reasonableness standard supersedes the \"plainly unreasonable\" standard in the context of reviewing supervised release and probation revocation sentences. They have taken three different approaches. The first assumes that the old \"plainly unreasonable\" standard is the same as the new reasonableness standard. The second concludes that Booker's reasonableness standard is different from, and supersedes, the \"plainly unreasonable\" standard. The third","PeriodicalId":386851,"journal":{"name":"Berkeley Journal of Criminal Law","volume":"1 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":"130611669","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}

{"title":"People v. Chance: Analyzing the Assault Statute's Present Ability Requirement","authors":"Stuart D. G. Robinson","doi":"10.15779/Z38T62D","DOIUrl":"https://doi.org/10.15779/Z38T62D","url":null,"abstract":"Between 1997 and 2006 there were 5,045,904 felony arrests in California. During that same time span there were 1,094,130 arrests for assault. Indeed, in each of those years arrests for assault vastly outnumbered all other types of violent offenses combined. Arrests for assault also outnumbered every other specific type of felony arrest. In light of these statistics, the assault statute has the potential to affect more criminal defendants than any other section of the California Penal Code. It is hardly an overstatement, then, to suggest that the Supreme Court’s opinion in People v. Chance was the most important criminal case decided during the 2008 term. Chance afforded the Court an opportunity to interpret section 240 of the Penal Code. That section provides that “[a]n assault is an unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another.” The Court considered the present ability requirement and held that sufficient evidence supported the assault conviction of a two-strike offender. Reversing the judgment of the Court of Appeal, the Court clarified its holdings in prior assault cases concerning the required mental state under section 240. It also—and more importantly—established a test to evaluate a defendant’s present ability to injure his intended victim. The casenote proceeds in three parts. Part I discusses the factual background and procedural history of Chance. It also explores the reasoning of both Justice Corrigan’s majority opinion and Justice Kennard’s dissenting opinion. Part II considers prior decisions that influenced the reasoning in those opinions. In addition, this part briefly places California’s assault law in context","PeriodicalId":386851,"journal":{"name":"Berkeley Journal of Criminal Law","volume":"14 4","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"114007161","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}

{"title":"Punishing Mere Immorality? Skeptical Thoughts from a Comparative Perspective","authors":"Cristina de Maglie","doi":"10.15779/Z38VD6P51K","DOIUrl":"https://doi.org/10.15779/Z38VD6P51K","url":null,"abstract":"This essay explores the issue of using the criminal law to enforce moral beliefs, a topic that has been traditionally addressed by continental criminal law scholars by resorting to the theory of the “legal good” (Rechtsgutheorie). In turn, Anglo-American scholars have tackled the same issue through the lenses of the harm principle. However, both theories proved inadequate to solve this long-standing penal policy dilemma. Despite the many declarations of the principle of secularism in academic debates, the question of whether merely immoral conducts should be punished remains open to this day. This essay argues that a viable solution would be to shift the focus of the discussion from the legitimacy of prosecuting to the opportunity of punishing. Therefore, the debate should be re-oriented to focus on the mandatory preconditions to be met in a democratic and efficient system—one that sees criminal punishment as the real last resort to deal with contentious issues—before the criminal law can be deployed.","PeriodicalId":386851,"journal":{"name":"Berkeley Journal of Criminal Law","volume":"41 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":"127748995","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}

{"title":"Promoting Criminal Justice Reform through Legal Scholarship: Toward a Taxonomy","authors":"C. Steiker","doi":"10.15779/Z384K85","DOIUrl":"https://doi.org/10.15779/Z384K85","url":null,"abstract":"It is a pleasure and an honor to commemorate the life and career of Professor Caleb Foote, preeminent criminal justice scholar and reformer, by reflecting on what his life and work might teach us about how the next generation of criminal justice scholars can contribute to the reform of our institutions of criminal justice. My own experiences-working within the criminal justice system as a public defender, studying it as a scholar, and litigating and otherwise advocating for its reform as a law professor have persuaded me that our administration of criminal justice strays far from the ideals inscribed above many courthouse entrances. Instead of \"Equal Justice Under Law\" as the Supreme Court's marble inscription promises, perhaps it might be fairer to declare, as one New Yorker cartoon lampoons, \"Truth • Justice • Equality • Public Relations,\"1 or on occasion even \"Abandon Hope All Ye Who Enter Here,\" as Dante described the inscription on the entrance to hell. While I can easily identify many pathologies in our administration of criminal justice, over the years my gimlet-eyed students have identified many others, though not necessarily the same ones, of course. As these students study their casebooks, write their own research papers, participate in clinical opportunities offered by the law school, and work at summer jobs on issues","PeriodicalId":386851,"journal":{"name":"Berkeley Journal of Criminal Law","volume":"89 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":"115727972","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}

{"title":"Justice Department's Policy of Opposing Nolo Contendere Pleas: A Justification","authors":"M. Gurevich","doi":"10.15779/Z38TW57","DOIUrl":"https://doi.org/10.15779/Z38TW57","url":null,"abstract":"¶1For many, a criminal defendant is either guilty or innocent and should thus either assume responsibility for her crime by pleading guilty or contest her guilt and stand trial.[1] The nolo contendere plea provides a third alternative, where the defendant declines to contest guilt, but instead waives her right to trial and consents to be punished as if guilty.[2] Unlike a guilty plea, the nolo contendere plea is inadmissible in subsequent civil proceedings.[3] This plea has ancient origins, dating back to medieval England,[4] and has long been allowed in the American federal courts.[5] When the Federal Rules of Criminal Procedure were adopted in 1946, the nolo contendere plea was retained in Rule 11 and remains an option to this day.[6] Despite its longstanding use, the plea has been criticized by many, often in strong language.[7] Judge Learned Hand called it a “foolish concept;”[8] a district court called it a “mockery” of the law under which the plea was frequently entered.[9] In 1953, Attorney General Brownell issued a directive which stated that the nolo contendere plea was “one of the factors which has tended to breed contempt for Federal law enforcement.”[10] These critics argued that the nolo contendere pleas left the public confused about the defendant’s guilt, led to low sentences and allowed some guilty defendants avoid collateral consequences of their guilt.[11] Some courts refuse to accept nolo contendere pleas across the board;[12] the Department of Justice instructs federal prosecutors not to consent to them.[13]","PeriodicalId":386851,"journal":{"name":"Berkeley Journal of Criminal Law","volume":"22 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":"127106094","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}

{"title":"Reflections on Caleb Foote on Vagrancy-Type Laws","authors":"J. Skolnick","doi":"10.15779/Z388D1R","DOIUrl":"https://doi.org/10.15779/Z388D1R","url":null,"abstract":"Caleb Foote's classic 1956 article Vagrancy-Type Law and Its Administration, 1 which appeared in the University of Pennsylvania Law Review and reported on vagrancy-type laws and their administration in Philadelphia, foreshadowed a lifetime of commitment to understanding how the practices of police, prosecutors and the courts affected ordinary people, especially those who were poor, homeless, mentally impaired, or otherwise disadvantaged by race, ethnicity or poverty. Despite noteworthy changes in American vagrancy law and procedure, the policing of persons stigmatized with \"spoiled identity\" a concept introduced into sociology by Erving Goffman2 remains a significant, and possibly the most contentious, issue in policing and contemporary criminal justice today. It resonates especially in the term \"broken windows\" policing: the theory that crime flourishes in places where the appearance of disorder is permitted to dominate neighborhoods. 3 1 plan to say little about the pros and cons of \"broken windows\" policing. I want instead to discuss how the law of vagrancy mirrored social norms, how the social norms that infused vagrancy law likely remain with us, and how that may undermine constitutional policing. I am going to do this by focusing on and celebrating Caleb Foote's classic 1956 article. 4 One part of Caleb's article is a brilliantly told history. We learn that whether called vagrants, tramps, bums, hobos, beggars or, more recently, the","PeriodicalId":386851,"journal":{"name":"Berkeley Journal of Criminal Law","volume":"16 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":"127632382","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}

{"title":"Melendez-Diaz v. Massachusetts: Raising the Confrontation Requirements for Forensic Evidence in California","authors":"J. Chou","doi":"10.15779/Z381P6F","DOIUrl":"https://doi.org/10.15779/Z381P6F","url":null,"abstract":"Under the Sixth Amendment, a criminal defendant has the right to confront the \"witnesses against him.\"1 However, when considering the admissibility of crime lab reports, the Second and Third Districts of the California Courts of Appeal are interpreting the right to confrontation differently. The disagreement between these courts echoes a larger debate between jurists all over the country, a debate that the U.S. Supreme Court sought to settle with its decision in Melendez-Diaz v. Massachusetts.2 To clarify the application of Melendez-Diaz to California state courts, the California Supreme Court has granted review on People v. Rutterschmidt, a Second District homicide case that raises an issue with crime lab report admissibility.3 This article seeks to predict the outcome of Rutterschmidt by analyzing the language of Melendez-Diaz in relation to the divergent California appellate opinions. In Melendez-Diaz, the U.S. Supreme Court held that a crime lab report identifying a substance as cocaine was a \"witness against\" the defendant and triggered the defendant's right to confrontation under the Sixth Amendment.4 The decision was the latest in a string of Supreme Court decisions since Crawford v. Washington in 2004 that held that the Confrontation Clause requires the declarants of all \"testimonial\" statements be cross-examined in","PeriodicalId":386851,"journal":{"name":"Berkeley Journal of Criminal Law","volume":"63 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":"126714512","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}

{"title":"Moving Pictures . . . Maintaining Justice? Clarifying the Right Role for Victim Impact Videos in the Capital Context","authors":"Emily J. Holland","doi":"10.15779/Z38DP67","DOIUrl":"https://doi.org/10.15779/Z38DP67","url":null,"abstract":"INTRODUCTION Should a video memorializing the life of a capital crime victim determine whether the defendant lives or dies? Devastated loved ones might welcome this outcome and highlight the medium’s evidentiary value. The video may be the only way to communicate critical information about the victim and the shattering effect her death has upon survivors. It could afford the victim’s family a greater presence at trial or a way to honor the deceased. But where a video misrepresents information about the victim, prejudices the defendant, introduces bias, or somehow throws the trial record into doubt, we might answer the question differently. We might concede that some victim impact videos are being admitted for improper or even unethical reasons, and thus, that some life and death decisions are being made in an arbitrary fashion. With regard to what constitutes an appropriate victim impact video, I contend that while judges can play an important gatekeeper function and screen out victim impact material that is irrelevant or unduly prejudicial, the criminal justice community would benefit from more data and discussion on this issue. In Part I of this Comment, I will review the legal foundations of victim impact videos and the criteria by which state and federal courts seem to determine their admissibility. Part II will consider whether courts admit victim impact videos that are under-probative or over-probative of the principles announced in the Supreme Court case Payne v. Tennessee.","PeriodicalId":386851,"journal":{"name":"Berkeley Journal of Criminal Law","volume":"11 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":"121840892","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}

{"title":"More Questions than Answers: The Indeterminacy Surrounding Enemy Combatants Following Hamdi v. Rumsfeld","authors":"V. Sekhon","doi":"10.15779/Z382G9R","DOIUrl":"https://doi.org/10.15779/Z382G9R","url":null,"abstract":"","PeriodicalId":386851,"journal":{"name":"Berkeley Journal of Criminal Law","volume":"28 5","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"120886085","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}

{"title":"The Dutch approach to stalking laws","authors":"L. Royakkers","doi":"10.15779/Z384917","DOIUrl":"https://doi.org/10.15779/Z384917","url":null,"abstract":"¶1 The term stalking is a euphemism for the phenomenon in which a person with amorous and/or sexual motives incessantly follows and harasses another person. The assailant can use various means, such as sending flowers or wreaths, placing obituaries in newspapers, sending mail to the home or workplace of the victim, starting legal proceedings, writing letters, and making telephone calls. In some cases, the stalker’s actions reach beyond psychic torture, as he or she resorts to threats of or actual physical violence. Many famous people have been the victims of stalking. 1 Although no definitive empirical study exists that measures the prevalence of stalking in America, the National Victim Center estimates that 200,000 people in the United States are victims of stalking and that 1 in 20 women are targets of stalking. The media hype surrounding this phenomenon has grown to such proportions that many refer to stalking as the most out-of-control crime of our time. ¶2 History tells us, however, that stalking is not just a modern phenomenon. In Book 4, title 4, chapter 4 of the Institutes of Justinianus we find the following passage: “Iniuria commititur si quis matrem familias aut praetextatum praetextatamve adsectatus fuerit.” This roughly translates into “being a nuisance by following a married woman or a boy or girl can lead to prosecution.” Though the phenomenon of stalking has an ancient history, new technology has added some special dimensions. The cliché that new forms of technology offer new tools for criminal purposes applies particularly well to stalkers’ use of the Internet. ¶3 The explosive growth of computers and the World Wide Web has contributed to the growth of a new variant of stalking: cyberstalking (commonly described as electronic pursuit, e-mail stalking, and Internet tormenting). It can foster a paranoid world of evil and intrusive activities on the Internet, unbounded by geographical, temporal, or other physical barriers. Though little research has been done on cyberstalking to date, there are some legal cases in which the Internet was used as a means of menacing communication. The simplest form of cyberstalking involves sending e-mail messages to scare, threaten, or torment the victim. On the internet, individuals are able to speak and","PeriodicalId":386851,"journal":{"name":"Berkeley Journal of Criminal Law","volume":"34 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":"128665835","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}