Ernst Freund was one of the Founding Fathers of progressive constitutionalism. His 1904 book The Police Power: Public Policy and Constitutional Rights argued for a vastly expanded understanding of the police power. (The police power, broadly defined, is a government’s power to regulate health, safety, welfare and morals. It is distinct from other government powers, […]
Archive | Criminal Law
National Security Law in the News
By Eugene Kontorovich on November 25, 2012 11:51 am in Constitutional Law, Counter-Terrorism Policy, Criminal Law, Executive Branch, International Law, Military, National Security, Press, Targeted Killing
National Security Law in the News: A Guide for Journalists, Scholars, and Policymakers is a new book published by the ABA’s Standing Committee on Law and National Security and Northwestern’s Medill School of Journalism. Despite the title, the book should be of interest to a general audience, as it offers a concise, broad plain-language overview […]
The Ruby Ridge murders, 20 years later
By David Kopel on August 22, 2012 11:48 pm in Criminal Law, Executive Branch, Growth of Government, Guns, Self-Defense, Targeted Killing, War on Drugs
The Prologue to my book No More Wacos: What’s Wrong with Federal Law Enforcement and How to Fix it, includes a section on the Ruby Ridge case. Much more on Waco and Ruby Ridge is available on the Waco page on my website.
Blackmail
Some commenters have recently brought up the perennial question of when speech becomes constitutionally unprotected blackmail. As I’ve mentioned before, this is one of the thorniest conceptual questions in all of jurisprudence. (Our own Jim Lindgren has written oft-cited articles on it, and blogged on it as well.) It’s sometimes called the Blackmail Paradox, and […]
Must a Criminal Defendant Know His Weapon Is a Machine-Gun for Mandatory Sentence to Apply?
Today, in United States v. Burwell, the U.S. Court of Appeals for the D.C. Circuit, sitting en banc, divided 5-3 over whether the federal mandatory sentnce of thirty years for possessing a machine gun when committing a crime of violence has a mens rea requirement. Judge Brown, writing for the Court, concluded the answer is […]
A Whale of a Federal Case
In today’s Washington Post, George Will describes what I can only call a real whale of an abusive federal criminal prosecution: The huge humpback whale whose friendliness precipitated a surreal seven-year — so far — federal hunt for criminality surely did not feel put upon. Nevertheless, our unhinged government, with an obsession like that of […]
Rape Conviction Overturned When Supposed Victim Recanted — What About the Civil Damages Award?
The Los Angeles Times reports: A Los Angeles County Superior Court judge has reversed the 2002 rape and kidnapping conviction of former Long Beach Poly football standout Brian Banks. Banks, now 26, was wrongly convicted of the charges based on the testimony of Wanetta Gibson, an acquaintance. Gibson testified that Banks raped her on the […]
Reducing the Drug War’s Damage to Government Budgets
By David Kopel on May 14, 2012 4:29 pm in Constitutional History, Criminal Law, Federalism, Proposed Legislation, Supreme Court, Tenth Amendment, War on Drugs
That’s the title of an article that I have co-authored with the Cato Institute’s Trevor Burrus, in a symposium issue of the Harvard Journal of Law & Public Policy. The symposium is “Law in an Age of Austerity,” and includes contributions from Charles Cooper (Treasury Dept.’s authority to index capital gains for inflation), John Eastman (state […]
Florida’s Self-Defense Laws
By David Kopel on March 27, 2012 11:59 pm in Crime Victims Rights, Criminal Law, Criminal Procedure, Guns, Self-Defense
Media coverage of Florida’s self-defense laws in recent weeks has often been very inaccurate. While some persons, particularly from the gun prohibition lobbies, have claimed that the Martin/Zimmerman case shows the danger of Florida’s “Stand your ground” law, that law is legally irrelevant to case. So let’s take a look at what the Florida laws […]
The Machinery of Criminal Justice #6: Equality, Vengeance, and Competence
By Stephanos Bibas (University of Pennsylvania), guest-blogging on March 16, 2012 10:57 pm in Crime Victims Rights, Criminal Law, Criminal Procedure
In the past week’s posts about my new book, I’ve sketched out some of the hidden costs of professionalizing our system and suggested ways in which we might deliberately slow down our speedy, impersonal assembly-line justice. This set of posts has focused on one aspect: giving victims larger roles. (The book offers an even more […]
The Machinery of Criminal Justice #5: Returning Power to the Public in a Lawyer-Driven System
By Stephanos Bibas (University of Pennsylvania), guest-blogging on March 16, 2012 11:04 am in Crime Victims Rights, Criminal Law, Criminal Procedure
In this week’s guest-blog posts on my new book, I’ve explored just a few of the ways in which our criminal justice machine has drifted far from its moral roots. Today I want to summarize the range of problems and offer just a couple of possible solutions, though the book goes into many more. Lawyers’ […]
The Machinery of Criminal Justice #4: Semi-Privatizing Criminal Justice
By Stephanos Bibas (University of Pennsylvania), guest-blogging on March 15, 2012 11:05 am in Crime Victims Rights, Criminal Law, Criminal Procedure
In yesterday’s guest-blog post on my new book, I explored the gulf between criminal-justice insiders and outsiders, the lawyers and laymen who see criminal justice very differently. The book explores in detail some of the human needs that criminal justice professionals overlook, such as the thirst for remorse, apology, forgiveness, and reconciliation. Today I’ll suggest […]
The Machinery of Criminal Justice: The Gulf Between Insiders and Outsiders, and Its Costs
By Stephanos Bibas (University of Pennsylvania), guest-blogging on March 14, 2012 10:43 am in Crime Victims Rights, Criminal Law, Criminal Procedure
In yesterday’s guest-blog post on my new book, I discussed some of the ways in which criminal justice developed from a common-sense morality play into a professionalized machine during the nineteenth and twentieth centuries. Now I want to describe what the gulf between criminal justice insiders and outsiders looks like today; offer a few examples […]
The Machinery of Criminal Justice: From Public Morality Play to Hidden Plea Bargaining Machine
By Stephanos Bibas (University of Pennsylvania), guest-blogging on March 13, 2012 9:22 am in Crime Victims Rights, Criminal Law, Criminal Procedure, History
In yesterday’s guest-blog post on my new book, The Machinery of Criminal Justice, I surveyed how colonial American criminal justice was public, participatory, informal, and run by laymen. To be clear in response to some comments, I did not imply that we should go back to Salem witch trials, let alone medieval European trial by […]
The Machinery of Criminal Justice: Colonial Criminal Justice as a Morality Play
By Stephanos Bibas (University of Pennsylvania), guest-blogging on March 12, 2012 10:46 am in Crime Victims Rights, Criminal Law, Criminal Procedure, History, Uncategorized
I’d like to thank Eugene and his fellow co-conspirators for graciously letting me guest-blog this week about my new book, The Machinery of Criminal Justice, which was just published by Oxford University press and is available here. In a nutshell, the book is about: 1) how America moved from a populist system of public jury […]