DOCSLIB.ORG

In the Supreme Court of the United States

Total Page：16

File Type：pdf, Size：1020Kb

Download full-text PDF Read full-text
In the Supreme Court of the United States No. 16-1307 In the Supreme Court of the United States ALI HAMZA AHMAD SULIMAN AL BAHLUL, PETITIONER v. UNITED STATES OF AMERICA ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT BRIEF FOR THE UNITED STATES IN OPPOSITION JEFFREY B. WALL Acting Solicitor General Counsel of Record DANA J. BOENTE Acting Assistant Attorney General JOSEPH F. PALMER DANIELLE S. TARIN Attorneys Department of Justice Washington, D.C. 20530-0001 [email protected] (202) 514-2217 QUESTIONS PRESENTED 1. Whether the military commission plainly erred in not sua sponte dismissing the charge against petitioner of conspiracy to commit war crimes on the ground that Congress violated Article III by making that offense triable by military commission. 2. Whether the Military Commissions Act of 2006 (2006 MCA), 10 U.S.C. 948a et seq. (2006), authorizes prosecutions for conspiracy to commit war crimes based on conduct committed before its enactment. 3. Whether petitioner’s conspiracy conviction based on conduct that pre-dated enactment of the 2006 MCA plainly violated the Ex Post Facto Clause. 4. Whether the 2006 MCA plainly violated the equal protection component of the Due Process Clause because it limited the jurisdiction of military commissions to of- fenses committed by alien unlawful enemy combatants. (I) TABLE OF CONTENTS Page Opinions below .............................................................................. 1 Jurisdiction .................................................................................... 1 Statement ...................................................................................... 2 Argument ..................................................................................... 15 Conclusion ................................................................................... 33 TABLE OF AUTHORITIES Cases: Al-Bihani v. Obama, 590 F.3d 866 (D.C. Cir. 2010), cert. denied, 563 U.S. 929 (2011) ....................................... 32 B&B Hardware, Inc. v. Hargis Indus., Inc., 135 S. Ct. 1293 (2015) ......................................................... 18 Callan v. Wilson, 127 U.S. 540 (1888) ................................. 23 Colepaugh v. Looney, 235 F.2d 429 (10th Cir. 1956), cert. denied, 352 U.S. 1014 (1957) ..................................... 22 Collins v. Youngblood, 497 U.S. 37 (1990) .......................... 29 Hamdan v. Rumsfeld, 548 U.S. 557 (2006) ......2, 3, 20, 21, 22 Hamdan v. United States, 696 F.3d 1238 (D.C. Cir. 2012) ..................................................................... 7 Harisiades v. Shaughnessy, 342 U.S. 580 (1952) ............... 32 Marks v. United States, 430 U.S. 188 (1977) ...................... 25 Mathews v. Diaz, 426 U.S. 67 (1976) ................................... 31 Northern Pipeline Constr. Co. v. Marathon Pipe Line Co., 458 U.S. 50 (1982) ............................................... 20 Pinkerton v. United States, 328 U.S. 640 (1946) ................ 14 Puckett v. United States, 556 U.S. 129 (2009) .............. 17, 18 Quirin, Ex parte, 317 U.S. 1 (1942) .............. 12, 20, 21, 22, 23 United States v. Baucum, 80 F.3d 539 (D.C. Cir. 1996) ................................................................... 18 United States v. Cotton, 535 U.S. 625 (2002) ...................... 17 (III) IV Cases—Continued: Page United States v. Ferreira, 275 F.3d 1020 (11th Cir. 2001) .................................................................... 31 United States v. Haddock, 956 F.2d 1534 (10th Cir.), cert. denied, 506 U.S. 828 (1992) ................... 28 United States v. Harcrow, 66 M.J. 154 (C.A.A.F. 2008) .................................................................... 17 United States v. Marcus, 560 U.S. 258 (2010) .................... 28 United States v. Miranda, 780 F.3d 1185 (D.C. Cir. 2015) ................................................................... 17 United States v. Neuci-Peña, 711 F.3d 191 (1st Cir. 2013) ...................................................................... 18 United States v. Olano, 507 U.S. 725 (1993) ........... 16, 19, 27 United States v. Williams, 341 U.S. 58 (1951) ................... 17 Wellness Int’l Network, Ltd. v. Sharif, 135 S. Ct. 1932 (2015) ......................................................... 18 Wood v. Allen, 558 U.S. 290 (2010) ...................................... 28 Yakus v. United States, 321 U.S. 414 (1944) ....................... 28 Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952).............................................................. 20 Constitution and statutes: U.S. Const.: Art. I ........................................................................ passim § 8: Cl. 1 ........................................................................ 20 Cl. 10 (Define and Punish Clause) ..... 11, 13, 18, 20 Cl. 11 (Declare War Clause) ......................... 11, 21 Cls. 11-14 ............................................................... 20 Cl. 18 (Necessary and Proper Clause) ......... 20, 21 § 9, Cl. 3 (Ex Post Facto Clause) .................... passim V Constitution and statutes—Continued: Page Art. III ..................................................................... passim § 1 ............................................................................... 20 Amend. V .......................................................................... 23 Due Process Clause ................................6, 7, 12, 15, 30 Amend. VI ........................................................................ 23 Authorization for Use of Military Force, Pub. L. No. 107-40, § 2(a), 115 Stat. 224 ............................. 2 Espionage Act, ch. 30, 40 Stat. 217 ...................................... 23 Military Commissions Act of 2006, 10 U.S.C. 948a et seq. (2006) .......................................................................... 3 10 U.S.C. 948a .................................................................. 27 10 U.S.C. 948b(a) ............................................................... 3 10 U.S.C. 948d(a) ............................................................. 27 10 U.S.C. 950u .................................................................... 2 10 U.S.C. 950v(b)(1) .......................................................... 3 10 U.S.C. 950v(b)(2) .......................................................... 3 10 U.S.C. 950v(b)(24) ........................................................ 3 10 U.S.C. 950v(b)(25) ........................................................ 2 10 U.S.C. 950v(b)(28) .................................................... 2, 4 Military Commissions Act of 2009, 10 U.S.C. 948a et seq. ...................................................................................... 4 10 U.S.C. 950p(b) ............................................................. 27 10 U.S.C. 950p(d) ............................................................. 27 Uniform Code of Military Justice, 10 U.S.C. 801 et seq. ...................................................................................... 2 10 U.S.C. 821 .......................................................... 2, 3, 8, 9 War Crimes Act of 1996, 18 U.S.C. 2441 et seq. ................. 23 18 U.S.C. 2332(b) (2000) ........................................................ 29 VI Miscellaneous: Page 152 Cong. Rec. 20,727 (2006) ................................................ 27 Manual for Military Commissions (rev. ed. 2016) ........... 17 In the Supreme Court of the United States No. 16-1307 ALI HAMZA AHMAD SULIMAN AL BAHLUL, PETITIONER v. UNITED STATES OF AMERICA ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT BRIEF FOR THE UNITED STATES IN OPPOSITION OPINIONS BELOW The opinion of the court of appeals (Pet. App. 1-163) is reported at 840 F.3d 757. Prior opinions of the court of appeals (Pet. App. 165-301, 303-452) are reported at 792 F.3d 1 and 767 F.3d 1. The opinion of the United States Court of Military Commission Review (Pet. App. 455-680) is reported at 820 F. Supp. 2d 1141. JURISDICTION The judgment of the court of appeals was entered on October 20, 2016. A petition for rehearing was denied on November 28, 2016 (Pet. App. 681). On February 2, 2017, the Chief Justice extended the time within which to file a petition for a writ of certiorari to and including March 28, 2017, and the petition was filed on that date. The jurisdiction of this Court is invoked under 10 U.S.C. 950g(e) and 28 U.S.C. 1254(1). (1) 2 STATEMENT Following a trial by military commission at Guantá- namo Bay, Cuba, petitioner was convicted of conspiracy to commit offenses triable by military commission, in vi- olation of 10 U.S.C. 950v(b)(28) (2006); solicitation of others to commit offenses triable by military commis- sion, in violation of 10 U.S.C. 950u (2006); and providing material support for terrorism, in violation of 10 U.S.C. 950v(b)(25) (2006). Pet. App. 461-462. Petitioner was sentenced to life imprisonment. Id. at 461. The United States Court of Military Commission Review (USCMCR) affirmed. Id. at 455-680. The court of appeals affirmed petitioner’s conspiracy conviction and reversed peti- tioner’s convictions for solicitation and providing mate- rial support for terrorism. Id. at 1-163, 165-301, 303-452. 1. On September 11, 2001, the al Qaeda terrorist or- ganization attacked the United States and killed nearly 3000 people. Pet. App. 472; 11/2/15 Gov’t C.A. Br. 4. In response, Congress authorized the President
Load more

Recommended publications
  • Pattern Criminal Jury Instructions for the District Courts of the First Circuit)
    UNITED STATES DISTRICT COURT DISTRICT OF MAINE 2019 REVISIONS TO PATTERN CRIMINAL JURY INSTRUCTIONS FOR THE DISTRICT COURTS OF THE FIRST CIRCUIT DISTRICT OF MAINE INTERNET SITE EDITION Updated 6/24/19 by Chief District Judge Nancy Torresen PATTERN CRIMINAL JURY INSTRUCTIONS FOR THE FIRST CIRCUIT Preface to 1998 Edition Citations to Other Pattern Instructions How to Use the Pattern Instructions Part 1—Preliminary Instructions 1.01 Duties of the Jury 1.02 Nature of Indictment; Presumption of Innocence 1.03 Previous Trial 1.04 Preliminary Statement of Elements of Crime 1.05 Evidence; Objections; Rulings; Bench Conferences 1.06 Credibility of Witnesses 1.07 Conduct of the Jury 1.08 Notetaking 1.09 Outline of the Trial Part 2—Instructions Concerning Certain Matters of Evidence 2.01 Stipulations 2.02 Judicial Notice 2.03 Impeachment by Prior Inconsistent Statement 2.04 Impeachment of Witness Testimony by Prior Conviction 2.05 Impeachment of Defendant's Testimony by Prior Conviction 2.06 Evidence of Defendant's Prior Similar Acts 2.07 Weighing the Testimony of an Expert Witness 2.08 Caution as to Cooperating Witness/Accomplice/Paid Informant 2.09 Use of Tapes and Transcripts 2.10 Flight After Accusation/Consciousness of Guilt 2.11 Statements by Defendant 2.12 Missing Witness 2.13 Spoliation 2.14 Witness (Not the Defendant) Who Takes the Fifth Amendment 2.15 Definition of “Knowingly” 2.16 “Willful Blindness” As a Way of Satisfying “Knowingly” 2.17 Definition of “Willfully” 2.18 Taking a View 2.19 Character Evidence 2.20 Testimony by Defendant
    [Show full text]
  • Violent Crimes in Aid of Racketeering 18 U.S.C. § 1959 a Manual for Federal Prosecutors
    Violent Crimes in Aid of Racketeering 18 U.S.C. § 1959 A Manual for Federal Prosecutors December 2006 Prepared by the Staff of the Organized Crime and Racketeering Section U.S. Department of Justice, Washington, DC 20005 (202) 514-3594 Frank J. Marine, Consultant Douglas E. Crow, Principal Deputy Chief Amy Chang Lee, Assistant Chief Robert C. Dalton Merv Hamburg Gregory C.J. Lisa Melissa Marquez-Oliver David J. Stander Catherine M. Weinstock Cover Design by Linda M. Baer PREFACE This manual is intended to assist federal prosecutors in the preparation and litigation of cases involving the Violent Crimes in Aid of Racketeering Statute, 18 U.S.C. § 1959. Prosecutors are encouraged to contact the Organized Crime and Racketeering Section (OCRS) early in the preparation of their case for advice and assistance. All pleadings alleging a violation of 18 U.S.C. § 1959 including any indictment, information, or criminal complaint, and a prosecution memorandum must be submitted to OCRS for review and approval before being filed with the court. The submission should be approved by the prosecutor’s office before being submitted to OCRS. Due to the volume of submissions received by OCRS, prosecutors should submit the proposal three weeks prior to the date final approval is needed. Prosecutors should contact OCRS regarding the status of the proposed submission before finally scheduling arrests or other time-sensitive actions relating to the submission. Moreover, prosecutors should refrain from finalizing any guilty plea agreement containing a Section 1959 charge until final approval has been obtained from OCRS. The policies and procedures set forth in this manual and elsewhere relating to 18 U.S.C.
    [Show full text]
  • No. ___IN the SUPREME COURT of the UNITED STATES
    No. ______ IN THE SUPREME COURT OF THE UNITED STATES SAQUAWN HARRIS, Petitioner, v. UNITED STATES, Respondent. On Application for Extension of Time to File a Petition for a Writ of Certiorari to the District of Columbia Court of Appeals PETITIONER’S APPLICATION TO EXTEND TIME TO FILE A PETITION FOR A WRIT OF CERTIORARI SAMIA FAM (Counsel of Record) JOSHUA DEAHL PUBLIC DEFENDER SERVICE 633 Indiana Avenue, NW Washington, DC 20004 (202) 628-1200 Counsel for Petitioner No. ______ IN THE SUPREME COURT OF THE UNITED STATES SAQUAWN HARRIS, Petitioner, v. UNITED STATES, Respondent. PETITIONER’S APPLICATION TO EXTEND TIME TO FILE A PETITION FOR A WRIT OF CERTIORARI To the Honorable John G. Roberts, Jr., as Circuit Justice for the District of Columbia, covering the District of Columbia Court of Appeals. Petitioner Saquawn Harris, through undersigned counsel, respectfully requests that the time to file a Petition for a Writ of Certiorari in this matter be extended for sixty days to September 9, 2019. Mr. Harris’s motion for reconsideration of his petition for rehearing en banc with the D.C. Court of Appeals was denied on April 11, 2019, making his certiorari petition due to this Court on July 10, 2019. This extension motion is being filed more than 10 days in advance of the due date, per this Court’s rules. Sup. Ct. R. 13(4). This Court would have jurisdiction over the judgment under 28 U.S.C. § 1257(a).1 1 Mr. Harris previously filed a petition for a writ of certiorari after the initial denial of en banc rehearing, but the United States rejoined that the then-pending motion to reconsider en banc rehearing made this case “a particularly poor vehicle for review … [b]ecause the [D.C.
    [Show full text]
  • Wilson-Bey & Marbury V. US, on Rehearing En Banc
    Notice: This opinion is subject to formal revision before publication in the Atlantic and Maryland Reporters. Users are requested to notify the Clerk of the Court of any formal errors so that corrections may be made before the bound volumes go to press. DISTRICT OF COLUMBIA COURT OF APPEALS Nos. 01-CF-293 and 01-CF-633 LAKEISHA WILSON-BEY, APPELLANT, v. UNITED STATES, APPELLEE., and SCKEENA MARBURY, APPELLANT, v. UNITED STATES, APPELLEE. Appeals from the Superior Court of the District of Columbia (F-504-00 and F-505-00) (Hon. Russell F. Canan, Trial Judge) (Argued En Banc March 20, 2006 Decided July 20, 2006) John O. Iweanoge, Jr., for appellant Lakeisha Wilson-Bey. Matthew M. Hoffman, with whom John Moustakas and Stephen R. Galoob were on the brief, for appellant Sckeena Marbury. David B. Goodhand, Assistant United States Attorney, with whom Kenneth L. Wainstein, United States Attorney, and Roy W. McLeese III and Lynn C. Holliday, Assistant United States Attorneys, were on the brief, for appellee. Andrea Roth, with whom James Klein and Samia Fam were on the brief, for Public Defender Service, amicus curiae. Before WASHINGTON, Chief Judge, FARRELL, RUIZ, REID, GLICKMAN, and KRAMER, Associate Judges, and WAGNER and SCHWELB,* Senior Judges. SCHWELB, Senior Judge: Following a jury trial, Lakeisha Wilson-Bey and * Judge Schwelb was an Associate Judge of the court at the time of argument. His status changed to Senior Judge on June 24, 2006. 2 Sckeena Marbury, who are sisters, were both convicted of first-degree premeditated murder while armed, in violation of D.C.
    [Show full text]
  • Vicarious Criminal Liability and the Constitutional Dimensions of Pinkerton Alex Kreit [email protected]
    American University Law Review Volume 57 | Issue 3 Article 2 2008 Vicarious Criminal Liability and the Constitutional Dimensions of Pinkerton Alex Kreit [email protected] Follow this and additional works at: http://digitalcommons.wcl.american.edu/aulr Part of the Constitutional Law Commons, and the Criminal Law Commons Recommended Citation Kreit, Alex. “Vicarious Criminal Liability and the Constitutional Dimensions of Pinkerton.” American University Law Review 57, no.3 (February, 2008): 585-639. This Article is brought to you for free and open access by the Washington College of Law Journals & Law Reviews at Digital Commons @ American University Washington College of Law. It has been accepted for inclusion in American University Law Review by an authorized administrator of Digital Commons @ American University Washington College of Law. For more information, please contact [email protected]. Vicarious Criminal Liability and the Constitutional Dimensions of Pinkerton Abstract This article considers what limits the constitution places on holding someone criminally liable for another's conduct. While vicarious criminal liability is often criticized, there is no doubt that it is constitutionally permissible as a general matter. Under the long-standing felony murder doctrine, for example, if A and B rob a bank and B shoots and kills a security guard, A can be held criminally liable for the murder. What if, however, A was not involved in the robbery but instead had a completely separate conspiracy with B to distribute cocaine? What relationship, if any, does the constitution require between A's conduct and B's crimes in order to hold A liable for them? It is clear A could not be punished for B's crimes simply because they are friends.
    [Show full text]
  • Individual Liability for Conduct by Criminal Organizations in the United States Peter J
    Wayne State University Law Faculty Research Publications Law School 1-1-1998 Individual Liability for Conduct by Criminal Organizations in the United States Peter J. Henning Wayne State University, [email protected] Recommended Citation Peter J. Henning, Individual Liability for Conduct by Criminal Organizations in the United States, 44 Wayne L. Rev. 1305 (1998). Available at: http://digitalcommons.wayne.edu/lawfrp/101 This Article is brought to you for free and open access by the Law School at DigitalCommons@WayneState. It has been accepted for inclusion in Law Faculty Research Publications by an authorized administrator of DigitalCommons@WayneState. INDIVIDUAL LIABILITY FOR CONDUCT BY CRIMINAL ORGANIZATIONS IN THE UNITED STATES XVI International Congress of Penal Law Report Submitted by the American National Section, AIDP Topic L"General Part PETERJ. HENNINGt Table of Contents I. INTRODUCTION ................................. 1306 HI. INDIVIDUAL LIABILITY FOR THE CONDUCT OF OTHERS ..................................... 1307 HI.EXPANDING INDIVn)UAL LIABILITY: THE SCOPE OF AMERIcAN CONSPIRACY LAW .................... 1315 A. Proofof the ConspiratorialAgreement ............. 1317 B. The Pinkerton Doctrineof ConspiratorLiability ..... 1320 IV. LIMTING THE REACH OF CRIMINAL ORGANIZATIONS BY CURTAILING THER USE OF LEGIMATE BUSINESSES TO DISPOSE OF ILL-GOTTEN GAINS ................... 1324 A. RICO ..................................... 1325 B. Money Laundering ............................ 1329 V. CRIMINAL AND CIVIL SANCTIONS .................
    [Show full text]
  • Pinkerton Short-Circuits the Model Penal Code
    Volume 64 Issue 1 Article 3 4-1-2019 Pinkerton Short-Circuits the Model Penal Code Andrew Ingram Follow this and additional works at: https://digitalcommons.law.villanova.edu/vlr Part of the Criminal Law Commons Recommended Citation Andrew Ingram, Pinkerton Short-Circuits the Model Penal Code, 64 Vill. L. Rev. 71 (2019). Available at: https://digitalcommons.law.villanova.edu/vlr/vol64/iss1/3 This Article is brought to you for free and open access by Villanova University Charles Widger School of Law Digital Repository. It has been accepted for inclusion in Villanova Law Review by an authorized editor of Villanova University Charles Widger School of Law Digital Repository. Ingram: Pinkerton Short-Circuits the Model Penal Code 2019] PINKERTON SHORT-CIRCUITS THE MODEL PENAL CODE ANDREW INGRAM* I. INTRODUCTION HIS is an article about unintended consequences. It is about what Tcriminals do not foresee when they join a conspiracy, and it is about what legislators do not anticipate when they make piecemeal amendments to the text of the Model Penal Code. Consider what Veronica failed to see coming. Her boyfriend Sam is visiting from out of town, and she helps him to arrange a meeting with an acquaintance of hers named Jake to buy some cocaine. At the meeting, Jake takes Sam’s money but does not give him the drugs. Sam is angry at everyone, including Veronica. He and his friend Pierce want Veronica to drive them around town to find Jake and get his money and the cocaine. Veronica wants to propitiate Sam and make up for her role in the loss of his money.
    [Show full text]
  • The Law of Conspiracy and Collective Reason Jens David Ohlin
    Journal of Criminal Law and Criminology Volume 98 Article 4 Issue 1 Fall Fall 2007 Group Think: The Law of Conspiracy and Collective Reason Jens David Ohlin Follow this and additional works at: https://scholarlycommons.law.northwestern.edu/jclc Part of the Criminal Law Commons, Criminology Commons, and the Criminology and Criminal Justice Commons Recommended Citation Jens David Ohlin, Group Think: The Law of Conspiracy and Collective Reason, 98 J. Crim. L. & Criminology 147 (2007-2008) This Criminal Law is brought to you for free and open access by Northwestern University School of Law Scholarly Commons. It has been accepted for inclusion in Journal of Criminal Law and Criminology by an authorized editor of Northwestern University School of Law Scholarly Commons. 0091-4169/07/9801-0147 THE JOURNALOF CRIMINAL LAW & CRIMINOLOGY Vol. 98, No. I Copyright 0 2008 by Northwestern University, Schoolof Law Printed in U.S.A. GROUP THINK: THE LAW OF CONSPIRACY AND COLLECTIVE REASON JENS DAVID OHLIN* Although vicarious liability for the acts of co-conspirators is firmly entrenched in federal courts, no adequate theory explains how the act and intention of one conspiratorcan be attributed to another, simply by virtue of their criminal agreement. This Article argues that the most promising avenue for solving the Pinkerton paradox is an appeal to the collective intention of the conspiratorialgroup to commit the crime. Unfortunately, misplaced skepticism about the notion of a "group will" has prevented criminal scholars from embracing the notion of a conspiracy's collective intention to commit a crime. However, positing group intentions requires only that the criminal law recognize the rational relationships between individuals who decide to collectivize reason to pursue a common criminal goal; no burdensome theory of corporate animals with unified minds is required.
    [Show full text]
  • Examining Dangers Posed by the Willful Blindness Doctrine in the War on Terror
    CAGING CARELESS BIRDS: EXAMINING DANGERS POSED BY THE WILLFUL BLINDNESS DOCTRINE IN THE WAR ON TERROR SHAWN D. RODRIGUEZ* TABLE OF CONTENTS 1. INTRODUCTION ............................................................................ 692 2. THE WAR ON TERROR ................................................................. 696 2.1. 9/11 as a Catalyst for Change in Policy .......................... 696 2.2. Detainment Centers and Extraordinary Rendition ........ 699 2.3. Military Commissions .................................................... 701 2.3.1. Prosecutions of Detainees Accused of Planning the 9/11 Attacks ..................................................... 709 2.4. Domestic Terror Trials .................................................... 711 2.5. Foreign Criminal Indictments and Domestic Civil Suits Involving U.S. Officials ......................................... 712 3. WILLFUL BLINDNESS AND KNOWLEDGE ................................... 713 3.1. Theory of Willful Blindness in U.S. Criminal Law ........ 714 3.1.1. Knowledge and Understanding ............................. 715 3.2. U.S. Legal Rule on Willful Blindness ............................. 717 3.2.1. Willfulness Versus Negligence .............................. 719 3.2.2. Increasingly Frequent Use and Expansion of the Doctrine in U.S. Law ............................................ 720 3.3. Willful Blindness in International Criminal Law: Joint Criminal Enterprise ............................................... 721 * J.D. Candidate, University of Pennsylvania Law School,
    [Show full text]
  • Weighing Two Western Modes of Justice
    Presumption of Innocence or Presumption of Mercy?: Weighing Two Western Modes of Justice James Q. Whitman* American criminal law has a deep commitment to the presumption of innocence. Yet at the same time, American criminaljustice is, by international standards, extraordinarilyharsh. This Article addresses this troubling state of affairs. The Article contrasts the American approach with the approach of the inquisitorial tradition of continental Europe. Inquisitorialjustice, it argues, has a less far-reachingpresumption of innocence than American justice does. Yet if continentaljustice puts less weight on the rights of the innocent, it puts more on the rights of the guilty: while its presumption of innocence is comparatively weaker, it has what can be called a strong presumption of mercy. The continental approach produces forms of criminal procedure that can shock Americans. Continental trial in particularoften seems to American observers to operate on a disturbing de facto presumption of guilt; the most recent example is the high-profile trial of Amanda Knox. Yet the continental approach has contributed to the making of a significantly more humane criminaljustice system than ours. Moreover, the continental approach is better suited to cope with the rise of new forms of scientific investigation. The Article pleads for a shift away from the American culture of rights for the innocent toward a greaterconcern with continental-style rightsfor the guilty. I. Introduction Imagine two contrasting ideas of how to build a just system of criminal justice. The first is oriented toward the presumption of innocence. It starts from the belief that the gravest danger we face in criminal justice is the danger that innocent persons will be arrested, prosecuted, and convicted.
    [Show full text]
  • Criminal Law Outline Rachel Barkow Spring 2014
    CRIMINAL LAW OUTLINE RACHEL BARKOW SPRING 2014 TABLE OF CONTENTS I. Introduction A. The Criminal Justice System in the US B. The Role of the Prosecutor C. The Role of the Jury D. What to Punish? E. The Justification of Punishment II. Building Blocks of Criminal Law A. Legality B. Culpability and Elements of the Offense 1. Actus Reus/Omissions 2. Mens Rea a) Basic Conceptions and Applications b) Mistake of Fact c) Strict Liability d) Mistake of Law and the Cultural Defense III. Substantive Offenses A. Homicide and the Grading of Offenses 1. Premeditation/Deliberation 2. Provocation 3. Unintentional Killing 4. Felony Murder 5. Causation B. Rape 1. Introduction 2. Actus Reus 3. Mens Rea C. Blackmail IV. Attempts A. Mens Rea B. Actus Reus/Preparation V. Group Criminality A. Accountability for the Acts of Others 1. Mens Rea 2. Natural and Probable Consequences Theory 3. Actus Reus B. Conspiracy 1. Actus Reus and Mens Rea 2. Conspiracy as Accessory Liability 3. Duration and Scope of a Conspiracy 4. Reassessing the Law of Conspiracy 1 C. Corporate Criminal Liability VI. General Defenses to Liability A. Overview B. Justifications 1. Self Defense 2. Defense of Property 3. Necessity C. Excuses 1. Insanity 2. Expansion of Excuses 3. Duress VII. The Imposition of Criminal Punishment A. Sentencing B. Proportionality 2 INTRODUCTION Criminal Justice System in the U.S. I. Mass Incarceration and its Causes and Consequences A. Mass incarceration • Massive in terms of total numbers • Massive in terms of disproportionate impact on people of color B. Causes
    [Show full text]
  • The Pinkerton Problem
    The Pinkerton Problem Bruce A. Antkowiak* I. INTRODUCTION In the unlikely event that any junior faculty member should ever ask me for advice about how to write a law review article, I would give them this highly non-academic bit of counsel. First, find a real problem in the law, one that affects real people and one that can be addressed by judges and practitioners in the area. Second, help them find a way to solve it. Granted, this flies in the face of the conventional wisdom that law review articles should be laborious expositions of exhaustive research into esoteric points, grandiosely displayed, and targeted solely for other academics in a display reminiscent of peacocks flashing their plumage at the zoo. But as I am neither peacock nor traditional academic, my advice stands, and I seek to follow it here. Indeed, if I am any animal, I am an old criminal law warhorse who cares deeply that the system do its vital work in the way the Constitution intended. The problem addressed in this article strikes at these concerns. It was first brought to my attention when a member of a Committee I chair to draft and revise the Pennsylvania Criminal Jury Instructions complained that the current Pennsylvania instruction on the liability of a conspirator for substantive crimes committed by a co-conspirator (something we all know as the Pinkerton1 charge) was wrong or, minimally, incomplete.2 The Committee had to conclude, however, that since that instruction accurately reflects the teachings of the * Program Director, Criminology, Law, and Society, St.
    [Show full text]