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Original Understanding, Punishment, And Collateral Consequences, Brian M. Murray

University of Pennsylvania Journal of Constitutional Law

Can Founding-era understandings of punishment limit the reach of punitive state activity, specifically with respect to automatic collateral consequences? This Article begins to tackle that question. For over a century, the Supreme Court has struggled to define the boundaries of crime and punishment. Under current doctrine, a deprivation constitutes punishment when it furthers a legislatively assigned penal purpose. A retributive purpose is sufficient, whereas traditionally instrumentalist purposes, such as deterrence, rehabilitation, or incapacitation, are not. Scholars have criticized this framework for several reasons, highlighting its jurisprudential assumptions, philosophical confusion, historical inconsistency, unworkability, complexity, and failure to reflect the essentially punitive …

Child Sacrifices: The Precarity Of Minors' Autonomy And Bodily Integrity After Dobbs, Teri D. Baxter

University of Pennsylvania Journal of Constitutional Law

No abstract provided.

"The Key-Stone To The Arch": Unlocking Section 13'S Original Meaning, Kevin Bendesky

University of Pennsylvania Journal of Constitutional Law

The Supreme Court of Pennsylvania holds that Section 13 of the State’s constitution, which prohibits all “cruel punishments,” is coextensive with the Eighth Amendment, which prohibits only punishments that are both “cruel and unusual.” Rather than analyze the state provision independently, the court defers to the U.S. Supreme Court’s interpretation of the Eighth Amendment. This, says the court, is because Pennsylvania history does not provide evidence that the Commonwealth’s prohibition differs from the federal one. And without that historical basis, the court believes it is bound by federal precedent. This is mistaken.

History reveals that Pennsylvanians had a distinct, original …

The Federal War On Guns: A Story In Four-And-A-Half Acts, Brandon E. Beck

University of Pennsylvania Journal of Constitutional Law

“History is a jangle of accidents, blunders, surprises and absurdities, and so is our knowledge of it, but if we are to report it at all we must impose some order upon it.”

Beginning in the early 1990s, the Executive Branch took a novel approach to the enforcement of federal firearms offenses. It replaced traditional notions of restraint with a newfound willingness to exercise its power broadly, leading to a sharp increase in the number of federal firearms offenders that continues today. A recent development, however, threatens to dismantle the core of the federal firearms scheme. Decided in 2022, the …

Equal Protection Against Policing, Evan Bernick

University of Pennsylvania Journal of Constitutional Law

No abstract provided.

Implicit Bias, Structural Bias, And Implications For Law And Policy, Goodwin Liu

University of Pennsylvania Journal of Constitutional Law

No abstract provided.

Allowing The Courts To Step In Where Needed: Applying The Plra's 90-Day Limit On Preliminary Relief, Catherine T. Struve

All Faculty Scholarship

The Prison Litigation Reform Act responded to two major assertions—that prison and jail inmates were swamping the courts with frivolous lawsuits and that federal-court injunctions were imposing unwarranted requirements on prison and jail systems. The first assertion led to the PLRA provisions restricting prisoner lawsuits. The second assertion gave rise to the PLRA’s limits on injunctions “in any civil action with respect to prison conditions.” These limits (1) set requirements for the entry of any injunction, (2) provide for the termination of existing permanent injunctions, and (3) constrain the entry of preliminary injunctions. As to the first of these limits, …

Education For Learners With Disabilities As A Social Right, Dimitris Anastasiou, Ilias Bantekas

University of Pennsylvania Journal of Constitutional Law

No abstract provided.

Challenging The Constitutionality Of Qualified Immunity, Taylor Kordsiemon

University of Pennsylvania Journal of Constitutional Law

No abstract provided.

Insanity-Plea Bargains: A Constitutionally And Practically Good Idea?, Sarah J. Goodman

University of Pennsylvania Journal of Constitutional Law

No abstract provided.

Exigencies, Not Exceptions: How To Return Warrant Exceptions To Their Roots, Michael Gentithes

University of Pennsylvania Journal of Constitutional Law

No abstract provided.

Fugitives From Slavery And The Lost History Of The Fourth Amendment, Michael J. Zydney Mannheimer

University of Pennsylvania Journal of Constitutional Law

No abstract provided.

Racial Justice: The Failure Of The Warren Court's Criminal Procedure, George C. Thomas Iii

University of Pennsylvania Journal of Constitutional Law

No abstract provided.

The Unfinished Revolution For Immigrant Civil Rights, Allison B. Tirres

University of Pennsylvania Journal of Constitutional Law

No abstract provided.

The Past And Future Of Procedure Scholarship, James E. Pfander

University of Pennsylvania Journal of Constitutional Law

No abstract provided.

Dred Scott And Asian Americans: Was Chief Justice Taney The First Critical Race Theorist?, Kevin R. Johnson

University of Pennsylvania Journal of Constitutional Law

No abstract provided.

The Appointment Of Counsel In Collateral Review, Diana Cummiskey

University of Pennsylvania Journal of Constitutional Law

No abstract provided.

Exploring The Interpretation And Application Of Procedural Rules: The Problem Of Implicit And Institutional Racial Bias, Edward A. Purcell Jr.

University of Pennsylvania Journal of Constitutional Law

No abstract provided.

Virtual Guilty Pleas, Jenia I. Turner

University of Pennsylvania Journal of Constitutional Law

No abstract provided.

Juries, Democracy, And Petty Crime, John D. King

University of Pennsylvania Journal of Constitutional Law

No abstract provided.

From Negative To Positive Algorithm Rights, Cary Coglianese, Kat Hefter

All Faculty Scholarship

Artificial intelligence, or “AI,” is raising alarm bells. Advocates and scholars propose policies to constrain or even prohibit certain AI uses by governmental entities. These efforts to establish a negative right to be free from AI stem from an understandable motivation to protect the public from arbitrary, biased, or unjust applications of algorithms. This movement to enshrine protective rights follows a familiar pattern of suspicion that has accompanied the introduction of other technologies into governmental processes. Sometimes this initial suspicion of a new technology later transforms into widespread acceptance and even a demand for its use. In this paper, we …

A Backdoor Bivens Remedy: State Civil Rights Torts And The Federal Tort Claims Act, Aseem Chipalkatti

University of Pennsylvania Journal of Constitutional Law

No abstract provided.

Good Cops, Bad Cops, And The Exclusionary Rule, Andrew M. Carter

University of Pennsylvania Journal of Constitutional Law

No abstract provided.

The Constitution Of Black Abolitionism: Reframing The Second Founding, James W. Fox Jr.

University of Pennsylvania Journal of Constitutional Law

No abstract provided.

The Olc Emoluments Clause Jurisprudence In The Executive Branch, Arthur H. Garrison

University of Pennsylvania Journal of Constitutional Law

No abstract provided.

Punishing The Poor: Challenging Carceral Debt Practices Under Bearden And M.L.B., Tyler Smoot

University of Pennsylvania Journal of Constitutional Law

No abstract provided.

Young Adults And Criminal Culpability, Amber Venturelli

University of Pennsylvania Journal of Constitutional Law

No abstract provided.

Exposing Police Misconduct In Pre-Trial Criminal Proceedings, Anjelica Hendricks

All Faculty Scholarship

This Article presents a unique argument: police misconduct records should be accessible and applicable for pre-trial criminal proceedings. Unfortunately, the existing narrative on the value of police misconduct records is narrow because it exclusively considers how these records can be used to impeach officer credibility at trial. This focus is limiting for several reasons. First, it addresses too few defendants, since fewer than 3% of criminal cases make it to trial. Second, it overlooks misconduct records not directly addressing credibility—such as records demonstrating paperwork deficiencies, failures to appear in court, and “mistakes” that upon examination are patterns of abuse. Finally, …

Civil Vs. Criminal Legal Aid, Shaun Ossei-Owusu

All Faculty Scholarship

The past few decades have highlighted the insidious effects of poverty, particularly for poor people who lack access to legal representation. Accordingly, there have been longstanding calls for “Civil Gideon,” which refers to a right to counsel in civil cases that would address issues tied to housing, public benefits, family issues, and various areas of law that poor people are often disadvantaged by due to their lack of attorneys. This civil right to counsel would complement the analogous criminal right that has been constitutionalized. Notwithstanding the persuasive arguments made for and against Civil Gideon, it is less clear …

The Expansive Reach Of Pretrial Detention, Paul Heaton

All Faculty Scholarship

Today we know much more about the effects of pretrial detention than we did even five years ago. Multiple empirical studies have emerged that shed new light on the far-reaching impacts of bail decisions made at the earliest stages of the criminal adjudication process. The takeaway from this new generation of studies is that pretrial detention has substantial downstream effects on both the operation of the criminal justice system and on defendants themselves, causally increasing the likelihood of a conviction, the severity of the sentence, and, in some jurisdictions, defendants’ likelihood of future contact with the criminal justice system. Detention …