Criminal Law & Procedure

Criminalizing Normal Adolescent Development in Communities of Color

Kristin Henning

Over the last quarter century, psychological research has shown that much of youth crime and delinquency is the product of normal adolescent development.  Compared to adults, adolescents often make impetuous and ill-considered decisions, are susceptible to negative influences and outside pressures, and have a limited capacity to identify and weigh… Read More »

Judging Sex

Deborah Tuerkheimer

Over three decades ago, rape law advanced to reflect the general proposition that a woman’s past sexual conduct is not evidence that she consented to an alleged rape.  In the past, behavior deemed unchaste was thought to suggest a greater likelihood that a rape victim willingly engaged in sex with… Read More »

The Riddle of Rape-by-Deception and the Myth of Sexual Autonomy

Jed Rubenfeld

Prologue
While the version of this Article published in the Yale Law Journal explains the history of American sex law, grapples with traditional justifications for excluding rape-by-deception from rape law, and maps the main options available to rape law once its difficulties are exposed, this Article jumps right to the… Read More »

DNA PROFILES, COMPUTER SEARCHES, AND THE FOURTH AMENDMENT

Catherine W. Kimel

Pursuant to federal statutes and to laws in all fifty states, the United States government has assembled the Combined DNA Index System (CODIS), a database containing DNA profiles of over eleven million citizens. Without judicial authorization, the government searches these profiles one hundred thousand times every day, seeking to link… Read More »

The Age of Consent: When is Sexting No Longer “Speech Integral to Criminal Activity?”

Antonio M. Haynes

Jane met her boyfriend Jim at a high school football game. Jane was just a few days shy of sixteen at the time, and she and Jim, seventeen, instantly connected. They began dating, and, a few months later but before Jim’s eighteenth birthday, the two had sex together for the… Read More »

  • 21 January 2013

Double Jeopardy as a Limit on Punishment

Carissa Byrne Hessick & F. Andrew Hessick

The Double Jeopardy Clause provides that no “person be subject for the same offense to be twice put in jeopardy of life or limb.” As the Supreme Court has recognized, the Clause protects not only against multiple trials, but also against “multiple punishments for the same offense.” Even so, courts have… Read More »

Could Specialized Criminal Courts Help Contain the Crises of Overcriminalization and Overincarceration?

Allegra M. McLeod

The Explosion of Specialized Criminal Courts: An Introduction

With aspirations of reducing reliance on incarceration, specialized criminal courts proliferated widely over the past two decades. There are approximately 3,000 specialized criminal courts in the United States, including drug courts, mental health courts, veterans courts, and reentry courts. These courts arose… Read More »

The Use of Legal Scholarship by the Federal Courts of Appeals: An Empirical Study

David Schwartz & Lee Petherbridge

Legal scholarship has been under sharp attack, particularly when it comes to the role some believe it should play in support of the legal profession.  In recent remarks, Chief Justice John Roberts explained that he does not pay much attention to it, reportedly stating that legal scholarship is not “particularly… Read More »

Who Will Watch the Watchmen?: Citizens Recording Police Conduct

Michael Potere

“Get off the motorcycle!  Get off the motorcycle!  Get off the motorcycle!  State Police . . . put your hands up!” off-duty Maryland State Trooper J.D. Uhler yelled as he jumped out of his car, pulled out his gun, and ran towards motorcyclist Anthony Graber.  Trooper Uhler exited his personal vehicle wearing street clothes… Read More »

Sorting Guilty Minds

Francis Shen & Morris Hoffman & Owen Jones & Joshua Greene & René Marois

Every crime consists of an illegal act committed with a guilty mind. Proving the act alone is rarely enough because the law typically does not criminalize accidents. Yet while the distinction between accidents and non-accidents seems straightforward, punishing the “guilty mind”—as students quickly learn and practicing attorneys well know—is much… Read More »

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