Digital Commons Network^™

Proportionalities, Youngjae Lee

Notre Dame Law Review Reflection

“Proportionality” is ubiquitous. The idea that punishment should be proportional to crime is familiar in criminal law and has a lengthy history. But that is not the only place where one encounters the concept of proportionality in law and ethics. The idea of proportionality is important also in the self-defense context, where the right to defend oneself with force is limited by the principle of proportionality. Proportionality plays a role in the context of war, especially in the idea that the military advantage one side may draw from an attack must not be excessive in relation to the loss of …

Penjatuhan Kebiri Kimia Bagi Pelaku Kejahatan Seksual Terhadap Anak Dalam Perspektif Falsafah Pemidanaan, Tunggal S, Nathalina Naibaho

Jurnal Hukum & Pembangunan

Sexual assault against children is an phenomenon that often occurs in Indonesia. The statistic shows that the number of sexual assault against children doesn't decrease significantly. Punishment is not the only way to control the number of sexual assault against children. Then, the goverment passed new regulation that regulating of chemical castration in hope of reducing the number of sexual crimes against children. However, the presence of chemical castration raises objections and differences of opinion in various circles. This research aims to determine the sentencing purpose of chemical castration and the proper sanction for imposing chemical castration in Indonesia. This …

No Sense Of Decency, Kathryn E. Miller

Washington Law Review

For nearly seventy years, the Court has assessed Eighth Amendment claims by evaluating “the evolving standards of decency that mark the progress of a maturing society.” In this Article, I examine the evolving standards of decency test, which has long been a punching bag for critics on both the right and the left. Criticism of the doctrine has been fierce but largely academic until recent years. Some fault the test for being too majoritarian, while others argue that it provides few constraints on the Justices’ discretion, permitting their personal predilections to rule the day. For many, the test is seen …

Countermajoritarian Criminal Law, Michael L. Smith

Pace Law Review

Criminal law pervades American society, subjecting millions to criminal enforcement, prosecution, and punishment every year. All too often, culpability is a minimal or nonexistent aspect of this phenomenon. Criminal law prohibits a wide range of common behaviors and practices, especially when one considers the various federal, state, and municipal levels of law restricting people’s actions. Recent scholarship has criticized not only the scope and impact of these laws but has also critiqued these laws out to the extent that they fail to live up to supermajoritarian ideals that underlie criminal justice.

This Article adds to and amplifies this criticism by …

Forced Prison Labor: Punishment For A Crime?, Wafa Junaid

Northwestern University Law Review

The Thirteenth Amendment’s prohibition of involuntary servitude carves out an exception to its protections that allows the use of forced labor as “punishment for a crime” when an individual is “duly convicted.” Courts have interpreted this language as placing a categorical bar on Thirteenth Amendment claims alleged by individuals who are incarcerated. Yet, a consistent understanding of the term “punishment” that draws from the term’s use in the Eighth Amendment’s Cruel and Unusual Punishment Clause supports a narrower interpretation of the Thirteenth Amendment’s punishment exception. This Note argues that individuals cannot be denied Thirteenth Amendment protections unless they are explicitly …

Lengthy Minimum Parole Requirements: A Denial Of Hope, Heather Walker

Brigham Young University Prelaw Review

Using the Eighth Amendment, which prohibits cruel and unusual punishment, the Supreme Court has made sweeping changes to juvenile sentencing in the last fifteen years. The Court has stated that mandatory life sentences without the possibility of parole and life sentences without the possibility of parole for non-homicide offenders are unconstitutional. Nevertheless, there are still unanswered questions in juvenile sentencing. One under-researched aspect of this is the role that lengthy minimum parole requirements play in the constitutionality of juvenile sentencing. This type of sentencing lacks express legislative support, it does not have a legitimate penological justification, and it denies juveniles …

Rethinking The Reasonable Response: Safeguarding The Promise Of Kingsley For Conditions Of Confinement, Hanna Rutkowski

Michigan Law Review

Nearly five million individuals are admitted to America’s jails each year, and at any given time, two-thirds of those held in jail have not been convicted of a crime. Under current Supreme Court doctrine, these pretrial detainees are functionally protected by the same standard as convicted prisoners, despite the fact that they are formally protected by different constitutional amendments. A 2015 decision, Kingsley v. Hendrickson, declared that a different standard would apply to pretrial detainees and convicted prisoners in the context of use of force: consistent with the Constitution’s mandate that they not be punished at all, pretrial detainees …

(Un)Masking The Truth - The Cruel And Unusual Punishment Of Prisoners Amidst The Covid-19 Pandemic, Ariel Berkowitz

Touro Law Review

No abstract provided.

Force-Feeding Pretrial Detainees: A Constitutional Violation, Bryn L. Clegg

William & Mary Law Review

No abstract provided.

Recidivist Sentencing And The Sixth Amendment, Benjamin E. Adams

Indiana Journal of Law and Social Equality

No abstract provided.

Bucklew V. Precythe'S Return To The Original Meaning Of "Unusual": Prohibiting Extensive Delays On Death Row, Jacob Leon

Cleveland State Law Review

The Supreme Court, in Bucklew v. Precythe, provided an originalist interpretation of the term “unusual” in the Eighth Amendment of the United States Constitution. This originalist interpretation asserted that the word “unusual” proscribes punishments that have “long fallen out of use.” To support its interpretation, the Supreme Court cited John Stinneford’s well-known law review article The Original Meaning of “Unusual”: The Eighth Amendment as a Bar to Cruel Innovation. This Article, as Bucklew did, accepts Stinneford’s interpretation of the word “unusual” as correct. Under Stinneford’s interpretation, the term “unusual” is a legal term of art derived from eighteenth-century …

Remorse, Not Race: Essence Of Parole Release?, Lovashni Khalikaprasad

Journal of Race, Gender, and Ethnicity

No abstract provided.

Eighteen Is Not A Magic Number: Why The Eighth Amendment Requires Protection For Youth Aged Eighteen To Twenty-Five, Tirza A. Mullin

University of Michigan Journal of Law Reform

The Eighth Amendment protects a criminal defendant’s right to be free from cruel and unusual punishment. This Note argues that any punishment of eighteen- to twenty-five-year-olds is cruel and unusual without considering their youthfulness at every stage of the criminal process, and that it is unconstitutional under the Eighth Amendment for these youths to be automatically treated as fully-developed adults. This Note will explore in depth how juveniles differ from adults, both socially and scientifically, and how the criminal justice system fails every youth aged eighteen- to twenty-five by subjecting them to criminal, rather than juvenile, court without considering their …

Sb 407 - Sentencing And Punishment, Abigail L. Howd, Alisa M. Radut

Georgia State University Law Review

The Act provides comprehensive reform for offenders entering, proceeding through, and leaving the criminal justice system. The Act requires all superior court clerks to provide an electronic filing option, and it requires juvenile court clerks to collect and report certain data about juvenile offenders to the Juvenile Data Exchange. In addition, the Act creates the Criminal Justice Coordinating Council and the Criminal Case Data Exchange Board. The Act also changes the grounds for granting and revoking professional licenses and drivers’ licenses to offenders and modifies the provisions relating to issuing citations and setting bail. Inmates of any public institution may …

Ensuring That Punishment Does, In Fact, Fit The Crime, Meredith D. Mcphail

University of Michigan Journal of Law Reform

The United States imprisons a greater proportion of its own population than any other country in the world. A legal framework provides protections for those individuals who are incarcerated, but that framework is flawed. The jurisprudence distinguishes pretrial detainees (who have not been convicted) from convicted persons (who are serving a sentence). Based on that distinction, different standards apply to conditions of confinement and use of force cases brought by pretrial detainees and those brought by convicted persons. That distinction–and the resulting disparate application of legal standards–does not comport with the reality of incarceration, the concept of punishment, or the …

Equal Protection Under The Carceral State, Aya Gruber

Northwestern University Law Review

McCleskey v. Kemp, the case that upheld the death penalty despite undeniable evidence of its racially disparate impact, is indelibly marked by Justice William Brennan’s phrase, “a fear of too much justice.” The popular interpretation of this phrase is that the Supreme Court harbored what I call a “disparity-claim fear,” dreading a future docket of racial discrimination claims and erecting an impossibly high bar for proving an equal protection violation. A related interpretation is that the majority had a “color-consciousness fear” of remedying discrimination through race-remedial policies. In contrast to these conventional views, I argue that the primary anxiety …

All Bathwater, No Baby: Expressive Theories Of Punishment And The Death Penalty, Susan A. Bandes

Michigan Law Review

A review of Carol S. Steiker and Jordan M. Steiker, Courting Death: The Supreme Court and Capital Punishment.

A Meaningful Opportunity For Release: Resentencing Hearings For Juvenile Offenders Sentenced To Life Without Parole Following Aiken V. Byars, Robert M. Dudek

South Carolina Law Review

No abstract provided.

"Where Can I Go?": Excessiveness Of The Geographical Restraints Imposed By The Sexual Assault Reform Act In Urban Neighborhoods, Leslie Anne Mendoza

Touro Law Review

No abstract provided.

Reforming School Discipline, Derek W. Black

Northwestern University Law Review

Public schools suspend millions of students each year, but less than ten percent of suspensions are for serious misbehavior. School leaders argue that these suspensions ensure an orderly educational environment for those students who remain. Social science demonstrates the opposite. The practice of regularly suspending students negatively affects misbehaving students as well as innocent bystanders. All things being equal, schools that manage student behavior through means other than suspension produce the highest achieving students. In this respect, the quality of education a school provides is closely connected to its discipline policies.

Reformers have largely overlooked the connection between discipline and …

“Criminal Records” - A Comparative Approach, Sigmund A. Cohn

Georgia Journal of International & Comparative Law

No abstract provided.

Evading Miller, Robert S. Chang, David A. Perez, Luke M. Rona, Christopher M. Schafbuch

Seattle University Law Review

Miller v. Alabama appeared to strengthen constitutional protections for juvenile sentencing that the United States Supreme Court recognized in Roper v. Simmons and Graham v. Florida. In Roper, the Court held that executing a person for a crime committed as a juvenile is unconstitutional under the Eighth Amendment. In Graham, the Court held that sentencing a person to life without parole for a nonhomicide offense committed as a juvenile is unconstitutional under the Eighth Amendment. In Miller, the Court held that a mandatory sentence of life without parole for a homicide offense committed by a juvenile is also unconstitutional under …

Lethal Injections: States Medicalize Execution, Joel B. Zivot

University of Richmond Law Review

No abstract provided.

A Survey Of The History Of The Death Penalty In The United States, Sheherezade C. Malik, D. Paul Holdsworth

University of Richmond Law Review

No abstract provided.

A Shot In The Dark: Why Virginia Should Adopt The Firing Squad As Its Primary Method Of Execution, P. Thomas Distanislao

University of Richmond Law Review

No abstract provided.

Has The "Machinery Of Death" Become A Clunker?, Stephen F. Smith

University of Richmond Law Review

No abstract provided.

Calling A Spade A Spade: Understanding Sex Offender Registration As Punishment And Implications Post-Starkey, Alex Duncan

Oklahoma Law Review

No abstract provided.

Juvenile Death Sentence Lives On... Even After Roper V. Simmons, Akin Adepoju

University of Massachusetts Law Review

This article begins with a discussion of the Supreme Court’s decision to abolish the death penalty as applied to individuals convicted of crimes they committed before they turned 18 and proceeds with a detailed exposition of worldwide standards of juvenile sentencing. Part I of this note briefly discusses the history and purposes of the juvenile justice system in the United States. Further, there is a general discussion on the constitutionality of life without parole sentences, which provides an overview of the inconsistencies between Federal and State Courts’ approaches when sentencing juveniles to life without parole. Part II analyzes the international …

Supreme Court, Bronx County, People Ex Rel. Furde V. New York City Dep't Of Correction, Adam D'Antonio

Touro Law Review

No abstract provided.

Making The Right Call For Confrontation At Felony Sentencing, Shaakirrah R. Sanders

University of Michigan Journal of Law Reform

Felony sentencing courts have discretion to increase punishment based on un-cross-examined testimonial statements about several categories of uncharged, dismissed, or otherwise unproven criminal conduct. Denying defendants an opportunity to cross-examine these categories of sentencing evidence undermines a core principle of natural law as adopted in the Sixth Amendment: those accused of felony crimes have the right to confront adversarial witnesses. This Article contributes to the scholarship surrounding confrontation rights at felony sentencing by cautioning against continued adherence to the most historic Supreme Court case on this issue, Williams v. New York. This Article does so for reasons beyond the unacknowledged …