Child Pornography Sentencing in the Sixth Circuit

Introduction and Article from the Honorable James J. Gilvary Symposium on Law, Religion, and Social Justic

DNA Exonerations and the Elusive Promise of Criminal Justice Reform

Review of: Wrongful Convictions and the DNA Revolution: Twenty-five Years of Freeing the Innocent (Daniel S. Medwed ed., Cambridge University Press 2017)

The Myth of Common Law Crimes

Conventional wisdom tells us that, after the United States was founded, we replaced our system of common law crimes with criminal statutes and that this shift from common law to codification vindicated important rule-of-law values. But this origin story is false on both counts. The common law continues to play an important role in modern American criminal law, and to the extent that it has been displaced by statutes, our justice system has not improved. Criminal statutes regularly delegate questions about the scope of criminal law to prosecutors, and judges have failed to serve as a check on that power. As a consequence, the current system provides less notice, less accountability, less separation of powers, and more potential for abuse than the common law system. Thus, to the extent the statute has displaced common law, the shift is not a story of the triumph of the rule of law; it is instead a story of legislative excess, prosecutorial supremacy, and judicial abdication. The conventional wisdom of criminal common law is not only false, but it also conceals the failings of our current criminal justice system

Violence Between Lovers, Strangers, and Friends

Part I of this Article briefly summarizes the commentary and studies that have examined the effect of victim-offender relationships on criminal justice decision making. It also notes instances where the treatment of stranger violence as more serious crime than comparable non-stranger violence has been codified in statutes or other written regulations. Possible justifications for the prioritization of stranger violence over non-stranger violence are explored in Part II. Those justifications include (a) a perception that stranger offenders are more culpable than nonstranger offenders; (b) a perception that stranger offenders are more dangerous than non-stranger offenders; (c) a belief that the non-stranger victims are at least partially at fault for the offenders’ actions; (d) a belief that non-stranger violence is best resolved as a private or non-criminal matter; and (e) fear and general public concern caused by stranger crime. This Part examines the empirical evidence that supports and contradicts each explanation, as well as the soundness of each justification for differentiating between offenders who are similar in all respects except for whether they knew their victims prior to the offenses. Part III makes the affirmative case for according non-stranger violence the same level of priority as stranger violence by identifying three arguments that suggest non-stranger crime is more serious than stranger crime. Drawing on the role of victim harm in criminal liability and sentencing decisions, it argues that the prioritization of violent crimes committed by strangers ignores the unique harms associated with nonstranger violence, such as increased victim injuries and breach of trust. Violence within personal relationships is also distinct from stranger violence in that a non-stranger offender violates not only the ordinary duty of one citizen not to physically harm another, but also the additional obligations and duties associated with many close social relationships. This Part briefly outlines the various positive obligations that the law imposes in close personal relationships, and it concludes that in prioritizing violence by strangers, the criminal law is inconsistent with other areas of law. The final affirmative argument in favor of equal prioritization of stranger and non-stranger violence is an argument about the interplay of criminal law and social norms: in treating stranger violence as more serious than non-stranger violence, the criminal justice system reinforces the questionable notion that violence is an unavoidable, and thus potentially excusable, aspect of personal relationships. The final Part of this Article briefly sketches my conclusions and their implications, explaining that my conclusions do not necessarily require more severe treatment of non-stranger violence, but indicate that nonstranger violence should receive equal treatment to stranger violence. This Part also notes that the two types of crime differ in some practical respects, and those differences must be considered in setting crime prevention and enforcement policies. Ultimately, the most effective prevention and enforcement techniques for non-stranger violence may require changing the public perception of non-stranger violence as less serious than stranger violence. The last several decades have already seen significant changes in public attitudes towards the seriousness of domestic violence and acquaintance rape. But even today stranger violence continues to garner a disproportionate amount of public attention and criminal justice resources. If, as this Article concludes, the more serious treatment of stranger violence cannot be justified, then public attitudes toward non-stranger violence require further change

Nondelegation and Criminal Law

Although the Constitution confers the legislative power on Congress, Congress does not make most laws. Instead, Congress delegates the power to make laws to administrative agencies. The Supreme Court has adopted a permissive stance towards these delegations, placing essentially no limits on Congress’s ability to delegate lawmaking power to agencies. In its recent decision, Gundy v. United States, the Court relied on this unrestrictive doctrine to uphold a statute delegating the power to write criminal laws. In doing so, the Court did not address whether greater restrictions should apply to delegations involving criminal law. Instead, it applied the same permissive test that it uses to evaluate other types of delegations. This Article argues that criminal delegations should be treated differently. A number of legal doctrines distinguish criminal laws from other laws. Examples include the vagueness doctrine, the rule of lenity, and the prohibition on criminal common law. The principles underlying these exceptional doctrines equally support tighter restrictions on criminal delegations. Moreover, the justifications in favor of permitting delegations apply less forcefully to criminal laws. Accordingly, this Article proposes that criminal law delegations be subject to greater restrictions than other delegations

Constraining Criminal Laws

This Article challenges the modern statutory interpretation of criminal laws. In doing so, it makes two distinct, but related contributions. First, it demonstrates that courts historically played a significantly more active role in interpreting criminal laws than they currently play. In particular, courts routinely interpreted statutes to reach no further than the text or the purpose, and they treated broadly written laws as ambiguous and in need of narrowing constructions. Put simply, courts used their interpretive powers to deliberately favor criminal defendants and constrain the criminal law. Second, it explains how a more active judiciary would combat some of the pathologies of the modern criminal justice system and protect important constitutional principles. Specifically, if modern courts were to use the historic rules of constraint, they would better protect important constitutional principles such as the separation of powers and democratic accountability. In making these points, the Article does not claim that courts are obliged to take a more active role in interpreting statutes; rather, it claims that courts are allowed to take this more active role and that there are good reasons to do so. In other words, while we do not argue that judges must use their interpretive powers to narrowly construe criminal statutes, we argue that they should. The Article proceeds in three parts. Part I begins by providing an overview of the dominant theories of statutory interpretation, both of which are premised on the idea that courts should act as faithful agents of the legislature when interpreting statutes. It then explains how, with only small exceptions that have little practical consequence, those theories of interpretation treat criminal laws the same as non-criminal laws. Part II demonstrates how these modern theories depart from historical practice in failing to distinguish between criminal and other statutes and by assuming that judges’ main interpretive task is to carry out the will of the legislature. It traces the development of the rules of statutory construction that judges used to constrain the reach of criminal laws, and it describes how these rules were widely accepted by early state and federal courts. Part III explains how, in abandoning their role as an institution that independently constrains the criminal law, modern courts have countenanced a disastrous expansion of the criminal justice system. If courts were to once again embrace their role as an institutional constraint on the scope of criminal law, rather than merely seeking to effectuate legislative will by enforcing the purpose or the text of a criminal statute, they could help curtail some of that expansion and better protect important constitutional values, such as the separation of powers and democratic accountability

Refining Child Pornography Law

The legal definition of child pornography is, at best, unclear. In part because of this ambiguity and in part because of the nature of the crime itself, the prosecution and sentencing of perpetrators, the protection of and restitution for victims, and the means for preventing repeat offenses are deeply controversial. In Refining Child Pornography Law, experts in law, sociology, and social work examine child pornography law and its consequences in an effort to clarify the questions and begin to formulate answers. Focusing on the roles of language and crime definition, the contributors discuss the increasing visibility child pornography plays in the national conversation about child safety, and present a range of views regarding the punishment of those who produce, distribute, and possess materials that may be considered child pornography

Barrock Lecture: Democracy in the Criminal Justice System: An Assessment

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