Digital Commons Network^™

Watching The Watchers: The Growing Privatization Of Criminal Law Enforcement And The Need For Limits On Neighborhood Watch Associations, Sharon Finegan

University of Massachusetts Law Review

On the night of February 26, 2012, George Zimmerman, a member of a neighborhood watch program, was patrolling his community in Sanford, Florida, when he spotted Trayvon Martin, a seventeen-year-old Africa-American high school student, walking through the neighborhood. Zimmerman dialed 911 and indicated that he was following "a real suspicious guy". The police dispatcher requested that Zimmerman discontinue following Martin, but he ignored the request and approached the teenager. In the resulting confrontation, Zimmerman used his legally owned semi-automatic handgun to shoot and kill Trayvon Martin. Martin, who was unarmed, had been returning from a local convenience store. George Zimmerman …

Solitary Confinement, Public Safety, And Recdivism, Shira E. Gordon

University of Michigan Journal of Law Reform

As of 2005, about 80,000 prisoners were housed in solitary confinement in jails and in state and federal prisons in the United States. Prisoners in solitary confinement are generally housed in a cell for twenty-two to twenty-four hours a day with little human contact or interaction. The number of prisoners held in solitary confinement increased 40 percent between 1995 and 2000, in comparison to the growth in the total prison population of 28 percent. Concurrently, the duration of time that prisoners spend in solitary confinement also increased: nationally, most prisoners in solitary confinement spend more than five years there. The …

Constitutionally Tailoring Punishment, Richard A. Bierschbach, Stephanos Bibas

Michigan Law Review

Since the turn of the century, the Supreme Court has regulated noncapital sentencing under the Sixth Amendment in the Apprendi line of cases (requiring jury findings of fact to justify sentence enhancements) as well as under the Eighth Amendment in the Miller and Graham line of cases (forbidding mandatory life imprisonment for juvenile defendants). Although both lines of authority sound in individual rights, in fact they are fundamentally about the structures of criminal justice. These two seemingly disparate doctrines respond to structural imbalances in noncapital sentencing by promoting morally appropriate punishment judgments that are based on individualized input and that …

Transforming Juvenile Justice: Making Doctrine Out Of Dicta In Graham V. Florida, Jason Zolle

Michigan Law Review First Impressions

In the late 1980s and 1990s, many state legislatures radically altered the way that their laws treated children accused of crimes. Responding to what was perceived of as an epidemic of juvenile violence, academics and policymakers began to think of child criminals as a "new breed" of incorrigible "superpredators." States responded by making it easier for prosecutors to try and sentence juveniles as adults, even making it mandatory in some circumstances. Yet in the past decade, the Supreme Court handed down four opinions that limit the states' ability to treat children as adults in the justice system. Roper v. Simmons …

Federal Incarceration By Contract In A Post-Minneci World: Legislation To Equalize The Constitutional Rights Of Prisoners, Allison L. Waks

University of Michigan Journal of Law Reform

In the 2012 case Minneci v. Pollard, the United States Supreme Court held that federal prisoners assigned to privately-run prisons may not bring actions for violations of their Eighth Amendment right against cruel and unusual punishment and may instead bring actions sounding only in state tort law. A consequence of this decision is that the arbitrary assignment of some federal prisoners to privately-run prisons deprives them of an equal opportunity to vindicate this federal constitutional right and pursue a federal remedy. Yet all federal prisoners should be entitled to the same protection under the United States Constitution-regardless of the type …

Mandatory Chemical Castration For Perpetrators Of Sex Offenses Against Children: Following California's Lead, Peter J. Gimino Iii

Pepperdine Law Review

No abstract provided.

Law Enforcement And Criminal Law Decisions, Erwin Chemerinsky

Pepperdine Law Review

No abstract provided.

Fictionalized Criminal Law And Youth Legal Consciousness, Avi Brisman

NYLS Law Review

No abstract provided.

Regulating Student Speech: Suppression Versus Punishment, Emily Gold Waldman

Indiana Law Journal

No abstract provided.

Furman'S Mythical Mandate, Scott W. Howe

University of Michigan Journal of Law Reform

This Article argues for the rescue and reform of Supreme Court doctrine regulating capital sentencing trials under the Eighth Amendment. Many legal commentators, both liberal and conservative, including several members of the Supreme Court, have concluded that the Court's regulation of capital sentencing trials is a disaster. The repeated criticisms rest on a commonly accepted view about a principal goal of capital sentencing regulation. The prevailing account, fueled by the rhetoric of the Justices, stems from the notion that Furman v. Georgia, 408 U.S. 208 (1972), revealed a mandate of consistency in the use of the death penalty that …

How Ohio V. Talty Provided For Future Bans On Procreation And The Consequences That Action Brings: Ohio V. Talty: Hiding In The Shadow Of The Supreme Court Of Wisconsin, Evelyn Holmer

Journal of Law and Health

This Note discusses the constitutionality of antireproduction restrictions as they relate to the purposes and goals of probation, in the context of the Talty, Oakley, and Tramnell decisions. This Note addresses the ramifications and implications of these restrictions in relation to the deadbeat parent crisis, and it proposes more adequate means to accomplish the competing goals of child welfare and adherence to constitutional doctrine. Section II introduces and dissects the fundamental right to procreate as it is found under two concepts: the right itself and the right to privacy. Section III discusses the purposes of probation, generally, and articulates two …

The Pathological Politics Of Criminal Law, William J. Stuntz

Michigan Law Review

Substantive criminal law defines the conduct that the state punishes. Or does it? If the answer is yes, it should be possible, by reading criminal codes (perhaps with a few case annotations thrown in), to tell what conduct will land you in prison. Most discussions of criminal law, whether in law reviews, law school classrooms, or the popular press, proceed on the premise that the answer is yes. Law reform movements regularly seek to broaden or narrow the scope of some set of criminal liability rules, always on the assumption that by doing so they will broaden or narrow the …

Fair Notice, Even For Terrorists: Timothy Mcveigh And A New Standard For The Ex Post Facto Clause, Andrew J. Gottman

Washington and Lee Law Review

No abstract provided.

Searching For The "Tail Of The Dog": Finding "Elements" Of Crimes In The Wake Of Mcmillan V. Pennsylvania, Richard G. Singer, Mark D. Knoll

Seattle University Law Review

Part II of this Article will examine the historical importance of punishment as a litmus test in the common law in finding the elements of an offense. In Part III, the historical approach used by federal courts when value or quantity was at issue will be analyzed in order to round out the pre-McMillan framework. Part IV will discuss the McMillan decision, as well as the post-McMillan regime. Part V will analyze Jones v. United States, the case now pending before the Court, in which the Court may have its last chance to correct the error of McMillan and …

Constitutional Challenges To New York State's Death Penalty Statute, John M. Shields

Fordham Urban Law Journal

New York State's death penalty statute is constitutionally flawed in many respects. It violates the state and federal prohibition against cruel and unusual punishment and provides unrestricted prosecutorial discretion to pursue the death penalty. This standardless and unfettered discretion creates the risk of arbitrary or discriminatory application of capital punishment.

The Limits Of Legal Language: Decisionmaking In Capital Cases, Jordan M. Steiker

Michigan Law Review

To make the case for the proposed changes, I will first describe briefly in Parts I and II the structure of pre- and post-Furman capital decisiorurtaking and the weaknesses of those approaches. I then will set forth in Part III the specific rationales for each proposed reform.

The scheme I propose raises a significant constitutional question. Can the death penalty be retained as a punishment if we abandon the pretense of providing meaningful guidance through detailed sentencing instructions? Would the reestablishment of relatively unstructured penalty phase deliberations similar to, but also importantly different from, those characteristic of pre-Furman …

Double Jeopardy

Touro Law Review

No abstract provided.

On The Abolition Of Man: A Discussion Of The Moral And Legal Issues Surrounding The Death Penalty, Thomas J. Walsh

Cleveland State Law Review

This article examines the moral and practical arguments supporting the death penalty in an effort to show why the United States should join other Western nations in the abolition of the death penalty. First, this article explores the historical context of the death penalty in the United States and examines the current status of constitutional doctrine on the death penalty. Next, because an analysis of the arguments for and against the death penalty are invariably charged with moral issues, an effort will be made to examine the moral aspects of the death penalty. The arguments offered in support of the …

Proportionality In Non-Capital Sentencing: The Supreme Court's Tortured Approach To Cruel And Unusual Punishment, Steven Grossman

Kentucky Law Journal

No abstract provided.

Legitimating Death, Louis D. Bilionis

Michigan Law Review

This article arrives at the surprising conclusion that a meaningful Eighth Amendment death penalty jurisprudence lives on, that it is a quite intelligible jurisprudence, and that it is driven by a coherent methodology with firm roots in the traditions of constitutional adjudication.

To reach that conclusion, it is helpful first to have some sense of what the Supreme Court has been doing in the death penalty area lately. Part I thus presents a topical review of the Court's recent work, identifying the themes that now dominate, pointing out the concerns those themes raise, and asking whether any sense can be …

Justifiably Punishing The Justified, Heidi M. Hurd

Michigan Law Review

Contemporary moral philosophy, political theory, and jurisprudence have converged to create a quite baffling dilemma. This dilemma is generated by the apparent incompatibility of three principles, each of which grounds features of our system of law and government, and each of which carries substantial normative weight. The first I shall call the punishment principle - a moral principle, doctrinally entrenched in American criminal and civil law, which holds that individuals who are morally justified in their actions ought not to be blamed or punished for those actions. The second is the principle of the rule of law - a complex …

Abrams V. United States: Remembering The Authors Of Both Opinions, James F. Fagan Jr.

Touro Law Review

No abstract provided.

Section 1983, Martin A. Schwartz, Honorable George C. Pratt, Leon Friedman

Touro Law Review

No abstract provided.

Capital Punishment And The American Agenda, John Pierce Stimson

Michigan Law Review

A Review of Capital Punishment and the American Agenda by Franklin E. Zimring and Gordon Hawkins

Just And Painful: A Case For The Corporal Punishment Of Criminals, Michigan Law Review

Michigan Law Review

A Review of Just and Painful: A Case for the Corporal Punishment of Criminals by Graeme Newman

Punishment And Juvenile Justice: A Conceptual Framework For Assessing Constitutional Rights Of Youthful Offenders, Martin R. Gardner

Vanderbilt Law Review

This Article attempts to provide an analytical framework for identifying the punitive aspects of the juvenile justice system. The Article proposes a framework that is extrapolated from Supreme Court cases which define punishment in contexts outside the juvenile area. Several commentators have criticized the Court's definitional efforts, some because of perceived inadequacies in the developed definitions, others because of the belief that the very enterprise of defining constitutional rights in terms of the presence or absence of punishment is misguided . Although many of these criticisms of the Court's record are understandable, the alleged defects are less detrimental to an …

Salvaging Proportionate Prison Sentencing: A Reply To Rummel V. Estelle, Thomas F. Cavalier

University of Michigan Journal of Law Reform

Part I of this Note provides a capsule of the Court's holding in Rummel. Part II argues, contrary to Rummel, that precedential support can be mustered to support eighth amendment review of sentence length. Finally, part 11,1 discusses the continued viability of the proportionality test as a vehicle for assessing challenges to the length of imprisonment, and discounts the concerns voiced in Rummel regarding the difficulty of judicial review of legislative sentencing decisions.

The Three Faces Of Double Jeopardy: Reflections On Government Appeals Of Criminal Sentences, Peter K. Westen

Michigan Law Review

Every now and then a case ·comes along that tests the fundamental premises of a body of law. United States v. DiFrancesco presents such a test to the law of double jeopardy, raising the question whether the government may unilaterally appeal a defendant's criminal sentence for the purpose of increasing the sentence. The question cannot be answered by facile reference to the text of the fifth amendment, because the terms of the double jeopardy clause are not self-defining. Nor can it be settled by reference to history, because the issue has not arisen with any frequency until now.

Reflections Upon Hegel's Concept Of Property, Contract, Punishment, And Constitutional Law, Morris D. Forkosch

Vanderbilt Law Review

Codification and re-codification in federal and state jurisdictions has proceeded in a geometrical progression these past decades. To what extent is the old law yielding or, au contraire, to what extent is the ancient law reappearing? For example, are Plato's views on crime and punishment being revived, continued, or changed?' Or,to what extent are Hegel's views in a certain few legal areas of present interest and value? As we shall see, an understanding of Hegel's juris-prudential views, as related to specific topics, is a present-day pragmatic necessity. We propose to seek these views, albeit briefly, in the fields of property, …

Constitutional Law-Expatriation-Criminal Due Process As Prerequisite To Expatriation When Imposed As Punishment, John W. Erickson

Michigan Law Review

Respondents, native-born Americans, in two separate cases sought declaratory judgments confirming their status as United States citizens. One wanted to return to this country, and the other sought to avoid deportation as an alien. The Government claimed that respondents had lost their citizenship by operation of section 401(j) of the Nationality Act of 1940 and its successor, section 349(a)(10) of the Immigration and Nationality Act of 1952, which automatically divest an American of his citizenship for "departing from or remaining outside the jurisdiction of the United States in time of war or . . . national emergency for the purpose …