Death Penalty 101: The Death Penalty Charging Decision in Arizona. Is There a Better Way?

2021, Past Issues, Print, Volume 53 (2021) Issue 3 (Fall)
Kent E. Cattani & Paul J. McMurdie Arizona’s procedure for determining whether to seek the death penalty—a decision by an elected County Attorney—was established when Arizona became a state in 1912. At that time, however, a decision to seek the death penalty began a process that bore little resemblance to what we have today. For example, between 1912 and 1960, in the 63 cases in which a death sentence was imposed, the average time from the date of the murder to the date of execution was less than two years. In fact, in 10 of those cases, less than a year passed between the crime and the execution.2 The current process, in contrast, often lasts more than 30 years, consuming significant resources at both the local and state level. And…
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Principles of State Constitutional Interpretation

2021, Past Issues, Print, Volume 53 (2021) Issue 3 (Fall)
Clint Bolick State constitutionalism—the practice of state courts deciding cases on independent state constitutional grounds—is a vital yet underdeveloped attribute of American federalism. Our system of dual sovereignty ensures the capacity of state courts to interpret their own constitutions to provide greater protections for individual rights than the federal constitution. When they do so, their decisions are not subject to review by federal courts absent a federal issue. Full Article.
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Decarceration and Default Mental States

2021, Online, Past Issues, Volume 53 (2021) Issue 2 (Summer)
Benjamin Levin On June 14, 2013, the House Judiciary Committee’s Overcriminalization Task Force convened a hearing on “Defining the Problem and Scope of Over-Criminalization and Over-Federalization.”1 The hearing featured testimony from four witnesses: George J. Terwilliger, III, a white-collar defense attorney and former U.S. Attorney and Acting Attorney General, William N. Shepherd of the American Bar Association, John G. Malcolm of the Heritage Foundation, and Steven D. Benjamin of the National Association of Criminal Defense Lawyers. Full Article.
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Kingsley, Unconditioned: Protecting Pretrial Detainees with an Objective Deliberate Indifference Standard in Section 1983 Conditions-of-Confinement Claims

2021, Past Issues, Print, Volume 53 (2021) Issue 2 (Summer)
Abby Dockum In the late hours of October 2, 2009, Jonathan Castro staggered drunkenly through Los Angeles, speaking unintelligibly and bumping into passersby. Concerned for his safety, police officers arrested Castro on a misdemeanor public drunkenness charge and transported him to the West Hollywood police station. He was placed in a sobering cell, which was furnished with only a toilet and mattress pads to protect detainees from injury. Full Article.
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Ahmaud Arbery, Reckless Racism and Hate Crimes: Recklessness as Hate Crime Enhancement

2021, Past Issues, Print, Volume 53 (2021) Issue 2 (Summer)
Ekow N. Yankah In February 2020, Ahmaud Arbery, a twenty-five-year-old Black jogger in Georgia, was chased down by a group of armed, White men in trucks, trapped, shot, and killed. His killers pursued Arbery because they suspected him—with no evidence whatsoever—of being behind a string of (unreported) neighborhood robberies. Arbery’s killers had never seen any suspect in those robberies. Full Article.
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The Willful Blindness Doctrine: Justifiable in Principle, Problematic in Practice

2021, Past Issues, Print, Volume 53 (2021) Issue 2 (Summer)
Kenneth W. Simons Under the willful blindness (WB) doctrine widely employed in federal criminal prosecutions, courts extend a statutory “knowledge” or “willfulness” requirement to encompass “willful blindness” or “deliberate indifference.” For example, courts conclude that for drug possession or distribution crimes that explicitly require knowing possession of the illegal drugs, a defendant can be convicted merely upon proof that he or she was willfully blind to whether the item possessed contained an illegal drug. (Suppose E pays money to D to transport a sealed box to F, and D knows that both E and F deal in drugs.) The doctrine has been applied to a wide range of other federal crimes, including smuggling firearms, medical insurance fraud and other types of fraud, identity theft, child pornography, transporting stolen property, money…
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Internal and External Challenges to Culpability

2021, Past Issues, Print, Volume 53 (2021) Issue 2 (Summer)
Stephen J. Morse “[E]ven a dog distinguishes between being stumbled over and being kicked.” The thesis of this Article is simple: As long as we maintain the current folk psychological conception of ourselves as intentional and potentially rational creatures, as people and not simply as machines, mental states will inevitably remain central to ascriptions of culpability and responsibility more generally. It is also desirable. Nonetheless, we are in a condition of unprecedented internal challenges to the importance of mental states in the context of mental abnormalities and of external challenges to personhood and agency based on the new behavioral neuroscience and genetics. The latter challengers argue that the central role the criminal law gives to mental states is deeply misguided. Full Article.
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Mezzanine Law: The Case of a Mens Rea Presumption

2021, Past Issues, Print, Volume 53 (2021) Issue 2 (Summer)
Erik Luna Many of the modern challenges of mens rea, the mental state element of crime, stem from the purported ambiguities of legislation.1 Sometimes the issue involves uncertainty in interpreting a specified mental state—whether, for instance, “willfully” requires an appreciation that one is violating the law, thereby allowing claims of ignorance through a mistake-of-law defense. At other times, a mens rea requirement may raise questions as to its application within a statute, like whether to distribute an explicit mental state across the elements of a crime. But when these interpretive possibilities prove impossible as a matter of language or reason, or when a provision is entirely bereft of any culpable mental state, the issue takes on a distinctly normative character: whether to infer a mental state requirement based on a…
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Why the Mind Matters in Criminal Law

2021, Past Issues, Print, Volume 53 (2021) Issue 2 (Summer)
Joshua Kleinfeld A theory of a social practice must be able to carry a certain descriptive and interpretive burden: it must be able to account for those features of the practice so central to its character that, without them, the practice would become distorted or unrecognizable as a phenomenon in the social world. A theory of jazz music needs an account of improvisation; a theory of natural science needs an account of experimentation; a theory of democracy needs an account of voting. A theory with no place for these sorts of structural or architectural features is incompetent, revisionist, or, at the limit, not a theory of the practice (of jazz, of science, of democracy) at all. As Ernest Weinrib has argued in developing a theory of private law: “Within private…
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Ignorance of Wrongdoing and Mens Rea

2021, Past Issues, Print, Volume 53 (2021) Issue 2 (Summer)
Douglas Husak Suppose we believe that ignorance of wrongdoing should often absolve wrongdoers from blame, criminal liability, and punishment. If so, how should this normative belief be reflected in the structure of criminal law? One of many possible solutions is to include ignorance of wrongdoing (when it is exculpatory) within the scope of mens rea. In other words, we might adopt the following thesis: defendants who are unaware their conduct is wrongful do not commit the mens rea of the offense that (otherwise) proscribes their conduct. In this paper I explore what can be said for and against this thesis. I expect most theorists will resist it, and I readily admit that it is likely to have implications that should give us pause. But I believe this thesis also has…
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