Journal of Criminal Law & Criminology最新文献

{"title":"Apprendi in the States: The Virtues of Federalism as a Structural Limit on Errors","authors":"Stephanos Bibas","doi":"10.2139/SSRN.410562","DOIUrl":"https://doi.org/10.2139/SSRN.410562","url":null,"abstract":"In Apprendi v. New Jersey, the Supreme Court of the U.S. required, at a minimum, that juries find beyond a reasonable doubt any fact that increases a defendant's statutory maximum sentence. This watershed decision broke sharply with two centuries of judicial discretion to find facts at sentencing under lower standards of proof. Apprendi left open large questions about its scope: would it change indictment and plea procedure? Would it be retroactive? Would Apprendi errors be harmless? Would Apprendi invalidate judicial mandatory minimum sentences or sentencing guidelines? Over the last three years, state courts have struggled to answer these questions. And they have by and large reached an unusual consensus: Apprendi should extend no further than its narrow holding requires, limiting only facts that raise statutory maximum sentences. This piece canvasses this development and asks why it developed this way. State courts have limited Apprendi not simply because they follow the Supreme Court in lock step or because they are mindless bastions of conservatism. The underlying lesson is that the state courts saw Apprendi's errors and reacted to limit them. They remained faithful to Apprendi's core holding, but they brought their practical experience to bear in damage control by extending it no further. A consensus developed that Apprendi was wrongly decided and should go no further than it must. This brings out a new point about federalism. States are often praised as laboratories of experimentation, going beyond federal minima. But here the process worked well in reverse: the Supreme Court went too far, and the states broke the expansion of what they rightly saw as a disruptive mistake. The moral of the story is that state courts are valuable participants in our cooperative federalism of criminal procedure as much for what they refrain from doing as for what they do.","PeriodicalId":47821,"journal":{"name":"Journal of Criminal Law & Criminology","volume":"94 1","pages":"1"},"PeriodicalIF":1.8,"publicationDate":"2003-08-14","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68695705","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":"Hope v. Pelzer: Increasing the Accountability of State Actors in Prison Systems - A Necessary Enterprise in Guaranteeing the Eight Amendment Rights of Prison Inmates","authors":"A. Chin","doi":"10.2307/3491314","DOIUrl":"https://doi.org/10.2307/3491314","url":null,"abstract":"","PeriodicalId":47821,"journal":{"name":"Journal of Criminal Law & Criminology","volume":"93 1","pages":"913"},"PeriodicalIF":1.8,"publicationDate":"2003-06-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2307/3491314","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"69209289","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":"Harris v. United States: The Supreme Court's Latest Avoidance of Providing Constitutional Protection to Sentencing Factors","authors":"J. L. Hendrix","doi":"10.2307/3491315","DOIUrl":"https://doi.org/10.2307/3491315","url":null,"abstract":"","PeriodicalId":47821,"journal":{"name":"Journal of Criminal Law & Criminology","volume":"56 1","pages":"947"},"PeriodicalIF":1.8,"publicationDate":"2003-06-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2307/3491315","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"69209307","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":"For Mice or Men or Children? Will the Expansion of the Eighth Amendment in Atkins V. Virginia Force the Supreme Court to Re-Examine the Minimum Age for the Death Penalty?","authors":"J. Hughes","doi":"10.2307/3491316","DOIUrl":"https://doi.org/10.2307/3491316","url":null,"abstract":"","PeriodicalId":47821,"journal":{"name":"Journal of Criminal Law & Criminology","volume":"93 1","pages":"973-1008"},"PeriodicalIF":1.8,"publicationDate":"2003-06-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2307/3491316","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"69209365","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":"Unequal justice: The Supreme Court's failure to curtail selective prosecution for the death penalty","authors":"J. Larson","doi":"10.2307/3491317","DOIUrl":"https://doi.org/10.2307/3491317","url":null,"abstract":"","PeriodicalId":47821,"journal":{"name":"Journal of Criminal Law & Criminology","volume":"93 1","pages":"1009-1031"},"PeriodicalIF":1.8,"publicationDate":"2003-06-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2307/3491317","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"69209404","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. Arvizu: Investigatory Stops and the Fourth Amendment","authors":"Jennifer Pelic","doi":"10.2307/3491318","DOIUrl":"https://doi.org/10.2307/3491318","url":null,"abstract":"","PeriodicalId":47821,"journal":{"name":"Journal of Criminal Law & Criminology","volume":"93 1","pages":"1033"},"PeriodicalIF":1.8,"publicationDate":"2003-06-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2307/3491318","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"69209422","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":"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":"93 1","pages":"881"},"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":"93 1","pages":"1057"},"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}

{"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":"94 1","pages":"295"},"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}

{"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":"93 1","pages":"467"},"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}