Digital Commons Network^™

The Colourful Truth: The Reality Of Indigenous Overrepresentation In Juvenile Detention In Australia And The United States, Rachel Thampapillai

American Indian Law Journal

No abstract provided.

The Pope And The Capital Juror, Aliza Plener Cover

Articles

In a significant change to Catholic Church doctrine, Pope Francis recently declared that capital punishment is impermissible under all circumstances. Counterintuitively, the Pope’s pronouncement might make capital punishment less popular but more prevalent in the United States. This Essay anticipates this possible dynamic and, in so doing, explores how “death qualification” of capital juries can insulate the administration of the death penalty when community morality evolves away from capital punishment.

What Happens In Vagueness Stays In Vagueness: The United States Constitution's Ideas On Race, Austin Clements

History Class Publications

The United States’ Constitution, while it may not explicitly discuss race in detail, has echoes of race throughout both its language and its history. Even during the origination of the Constitution, the inclusion of slavery was a hotly contested subject among the authors of the Constitution. The United States’ Constitution only uses the words “race” and “color” once and that is in the Fifteenth Amendment, which essentially gave black Americans the right to vote. While the US Constitution may not explicitly talk about race much, I argue that race is a present theme throughout the Constitution as well as behind …

Public Dollars, Private Discrimination: Protecting Lgbt Students From School Voucher Discrimination, Adam Mengler

Fordham Law Review

More than a dozen states operate school voucher programs, which allow parents to apply state tax dollars to their children’s private school tuition. Many schools that participate in voucher programs are affiliated with religions that disapprove of homosexuality. As such, voucher-accepting schools across the country have admissions policies that discriminate against LGBT students and students with LGBT parents. Little recourse exists for students who suffer discrimination at the hands of voucher-accepting schools. This Note considers two ways to provide protection from such discrimination for LGBT students and ultimately argues that the best route is for an LGBT student to bring …

Autonomy Isn't Everything: Some Cautionary Notes On Mccoy V. Louisiana, W. Bradley Wendel

St. Mary's Journal on Legal Malpractice & Ethics

The Supreme Court’s May 2018 decision in McCoy v. Louisiana has been hailed as a decisive statement of the priority of the value of a criminal defendant’s autonomy over the fairness and reliability interests that also inform both the Sixth Amendment and the ethical obligations of defense counsel. It also appears to be a victory for the vision of client-centered representation and the humanistic value of the inherent dignity of the accused. However, the decision is susceptible to being read too broadly in ways that harm certain categories of defendants. This paper offers a couple of cautionary notes, in response …

Collusion, Obstruction Of Justice, And Impeachment, Ediberto Roman, Melissa Gonzalez, Dianet Torres

Journal of Legislation

No abstract provided.

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 …

Diverse Originalism, Christina Mulligan

Faculty Scholarship

No abstract provided.

Book Review: Dershowitz On Presidential Impeachment: An Analysis Of The Case Against Impeaching Trump, Michael Conklin

ConLawNOW

This is a review of Alan Dershowitz’s 2018 book, The Case Against Impeaching Trump. Because the Constitution provides little guidance on presidential impeachment, the issue is often interpreted based on political party affiliation. Dershowitz, a strong Hillary Clinton supporter, provides a neutral examination of the issue. This review contains analysis of the current state of impeachment efforts, Dershowitz’s arguments against impeachment, and a critique of his proposed “shoe on the other foot” test.

Universal Representation, Lindsay Nash

Faculty Articles

In an era in which there is little good news for immigrant communities and even holding the line has become an ambitious goal, one progressive project has continued to gain steam: the movement to provide universal representation for non-citizens in removal proceedings. In the immigration field, “universal representation” refers to a system of appointed counsel that provides representation to indigent non-citizens facing deportation regardless of the apparent merits of their case. This model has proven a transformative change, particularly given the absence of any recognized right to government-funded counsel. In recent years, cities and counties throughout the nation have launched …

Introduction To The "Lockett V. Ohio At 40 Symposium": Rethinking The Death Penalty 40 Years After The U.S. Supreme Court Decision, Margery B. Koosed

ConLawNOW

Professor Koosed provides an introduction to the symposium on the fortieth anniversary of the U.S. Supreme Court’s decision in Lockett v. Ohio, which discusses the backstory and import of the case. The decision in Lockett laid the framework for narrowing application of the death penalty by overturning Ohio’s 1974 era death penalty law, and heralding the significance and breadth of mitigating factors that must be considered by jurors and judges making the life or death decision in the penalty phase of capital cases, and tapped in to issues of disproportionate sentencing (those decided and yet to be).

Brief Of National Law Professors Of Criminal, Procedural, And Constitutional Law, In Re Humphrey, California Supreme Court, Regarding The Imposition Of Money Bail And Conditions Of Pretrial Release, Sandra G. Mayson, Kellen R. Funk

All Faculty Scholarship

When the government proposes to incarcerate a person before trial, it must provide thorough justification, whether the mechanism of detention is a transparent detention order or its functional equivalent, the imposition of unaffordable money bail. A court contemplating money bail must determine whether it is likely to result in detention. If so, and the court nonetheless wishes to impose it, the court must find, by clear and convincing evidence established through an adversary hearing, that the unaffordable bail amount serves a compelling interest of the state that no less restrictive condition of release can meet. This will rarely be the …

Lockett Symposium: Is The Supreme Court's Command On Mitigating Circumstances A Spoonful Of Sugar With A Poison Pill For The Death Penalty?, Jeffrey L. Kirchmeier

ConLawNOW

This Article addresses how Lockett v. Ohio and the Supreme Court’s jurisprudence on mitigating factors in capital cases established a more humane death penalty while at the same time undermining the death penalty system. The Court’s emphasis on the constitutional importance of individualized sentencing has, in effect, helped return the U.S. death penalty system to an unconstitutional arbitrary and discriminatory system.

After the U.S. Supreme Court effectively struck down the existing death penalty statutes in 1972, state legislatures responded with new statutes designed to try to make a fairer and less arbitrary death penalty. When the Supreme Court reviewed these …

Lockett Symposium: Lockett V. Ohio And The Rise Of Mitigation Specialists, Russell Stetler

ConLawNOW

This article discusses the impact of Lockett in terms of the rise of mitigation specialists—the capital defense team members from a variety of multidisciplinary backgrounds whose dedicated function is to investigate the social history of the client in order to facilitate an outcome that avoids execution. In Part I, the article discusses how Lockett ended the confusion that resulted from the Supreme Court’s prior death penalty decisions in the 1970s. In Part II, the article examines the emergence of mitigation investigation as a central obligation of capital defense in response to Lockett, and the diverse career paths that led …

Lockett Symposium: Justice White's Lockett Concurrence And The Evolving Standards For A Capital Defendant's Mens Rea, Jordan Berman

ConLawNOW

In Lockett v. Ohio, Justice Byron White authored a separate concurring opinion specifically to assert that capital punishment violates the Eighth Amendment when imposed absent “a finding that the defendant possessed a purpose to cause the death of the victim.” This view was largely vindicated when Justice White authored the opinions in Enmund v. Florida and Cabana v. Bullock, in which the Court held that the death sentence could not constitutionally be imposed on one who did not kill or attempt to kill or have any intention of participating in or facilitating a killing. Nonetheless, just one year …

Lockett Symposium: Reflections On The Sandra Lockett Case, Peggy Cooper Davis

ConLawNOW

Professor Davis, who was one of the lawyers handling Sandra Lockett’s Supreme Court case, describes Ms. Lockett's courage under threat of execution and explains why principles of respect for human dignity should have forbidden placing her in that horrifying position.

Cracking Down On Cages: Feminist And Prison Abolitionist Considerations For Litigating Solitary Confinement In Canada, Winnie Phillips-Osei

Master of Laws Research Papers Repository

Guided by prison abolition ethic and intersectional feminism, my key argument is that Charter section 15 is the ideal means of eradicating solitary confinement and its adverse impact on women who are Aboriginal, racialized, mentally ill, or immigration detainees. I utilize a provincial superior court’s failing in exploring a discrimination analysis concerning Aboriginal women, to illustrate my key argument. However, because of the piecemeal fashion in which courts can effect developments in the law, the abolition of solitary confinement may very well occur through a series of ‘little wins’. In Chapter 11, I provide a constitutional analysis, arguing that solitary …

The New Jim Crow’S Equal Protection Potential, Katherine Macfarlane

William & Mary Bill of Rights Journal

In 1954, the Supreme Court’s Brown v. Board of Education opinion relied on social science research to overturn Plessy v. Ferguson’s separate but equal doctrine. Since Brown, social science research has been considered by the Court in cases involving equal protection challenges to grand jury selection, death penalty sentences, and affirmative action. In 2016, Justice Sotomayor cited an influential piece of social science research, Michelle Alexander’s The New Jim Crow: Mass Incarceration in the Age of Colorblindness, in her powerful Utah v. Strieff dissent. Sotomayor contended that the Court’s holding overlooked the unequal racial impact of suspicionless …

Dear Colleague: Due Process Is Not Under Attack At Colleges And Universities, As Shown Through A Comparative Analysis Of College Disciplinary Committees And American Juries, Mara Emory Shingleton

William & Mary Bill of Rights Journal

No abstract provided.

Church History, Liberty, And Political Morality: A Response To Professor Calhoun, Ian Huyett

Washington and Lee Law Review Online

In his address, Professor Calhoun used American Christian abolitionism to illustrate the beneficial role that religion can play in political debate. Surveying the past two millennia, I argue that Christian political thought has protected liberty in every era of the church’s dramatic history. Along the way, I rebut critics—from the left and right—who urge that Christianity’s political influence has been unhelpful or harmful. I also seek to show that statements like “religion has no place in politics” are best understood as expressions of arbitrary bias.

Prisoner-To-Public Communication, Demetria D. Frank

Brooklyn Law Review

The pervasive problem of over-incarceration in the United States is in part due to lack of correctional facility accountability to the public, and public lack of access to the prisoner experience. In light of the incessant persistence of over-incarceration and “hands off approach” taken by courts in prison administration, this article proposes an unqualified and unfettered prisoner-to-public communication right that would provide prison accountability to the public.

Judges Of Color: Examining The Impact Of Judicial Diversity In The Equal Protection Jurisprudence Of The United States Court Of Appeals For The Ninth Circuit, Kristine L. Avena

UC Law Constitutional Quarterly

From slavery to civil rights to affirmative action, America’s history has been plagued with the issue of race. The federal bench is no exception. For almost two centuries, the highest court of the nation did not represent the public that it served. This Note aims to determine how the presence of minority judges on the United States Court of Appeals for the Ninth Circuit impacts Equal Protection doctrine. This Note shows that a Ninth Circuit judge’s race is important in providing procedural and substantive contributions to the federal bench. Diverse judges use their life experiences to ensure that every person …

Piracy And Due Process, Andrew Kent

Michigan Journal of International Law

This article explores in depth the law of nations, English domestic law, and English government practice from the late medieval period through the eighteenth century, and the U.S. constitutional law and government practice during the Founding and antebellum periods. I conclude that Chapman’s claims about due process and piracy suppression are incorrect. Both Parliament and the U.S. Congress; both the Crown and its counselors and U.S Presidents and their advisers; both the Royal Navy and the U.S. Navy; and commentators both English and American believed that (1) pirates on the high seas could lawfully be subject to extrajudicial killing, but …

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 …

Open The Jail Cell Doors, Hal: A Guarded Embrace Of Pretrial Risk Assessment Instruments, Glen J. Dalakian Ii

Fordham Law Review

In recent years, criminal justice reformers have focused their attention on pretrial detention as a uniquely solvable contributor to the horrors of modern mass incarceration. While reform of bail practices can take many forms, one of the most pioneering and controversial techniques is the adoption of actuarial models to inform pretrial decision-making. These models are designed to supplement or replace the unpredictable and discriminatory status quo of judicial discretion at arraignment. This Note argues that policymakers should experiment with risk assessment instruments as a component of their bail reform efforts, but only if appropriate safeguards are in place. Concerns for …

Visibly (Un)Just: The Optics Of Grand Jury Secrecy And Police Violence, Nicole Smith Futrell

Dickinson Law Review (2017-Present)

Police violence has become more visible to the public through racial justice activism and social justice advocates’ use of technology. Yet, the heightened visibility of policing has had limited impact on transparency and accountability in the legal process, particularly when a grand jury is empaneled to determine whether to issue an indictment in a case of police violence. When a grand jury decides not to indict, the requirement of grand jury secrecy prevents public disclosure of the testimony, witnesses, and evidence presented to the grand jury. Grand jury secrecy leaves those who have seen and experienced the act of police …

Rekonseptualisasi Judicial Pardon Dalam Sistem Hukum Indonesia (Studi Perbandingan Sistem Hukum Indonesia Dengan Sisitem Hukum Barat), Mufatikhatul Farikhah

Jurnal Hukum & Pembangunan

Judicial Pardon in Indonesia is the result of comparative studies with several countries including the Netherlands, Greece, Portugal and Uzbekistan. The author tries to discover what legal system underlies the concept of Judicial Pardon applied in some countries and how the concept of judicial pardon is most compatible with the Indonesian Law System. This paper is based on normative legal research with a Historical Approach, Comparative Approach, and conceptual approach. Currently the criminal law is also influenced by the Anglo saxon legal system. Responding to the second issue is more appropriate when incorporating the conception of Islam as well as …

They Try: How The Supreme Court Has Addressed Issues Of Racial And Gender Discrimination In The Jury Selection Process, Jana C. Kelnhofer

Scholarly Undergraduate Research Journal at Clark (SURJ)

The rise of publicized police brutality cases (but not the rise in number of cases themselves) has resulted in an increase of public scrutiny of the court process. More often than not, police officers are found not guilty by a jury of their peers, only for the public to later find out that the jury was composed almost entirely of whites. How did this process start? How does it persist? Has the legal system attempted to address this problem, and discrimination in the jury selection process in general? By examining past Supreme Court decisions, this review explores the ways that …

Reasonable Action: Reproductive Rights, The Free Exercise Clause, And Religious Freedom In The United States And The Republic Of Ireland, Liam Ray

St. John's Law Review

(Excerpt)

This Note will argue that by denying certiorari in Stormans v. Wiesman, the Supreme Court missed an important opportunity to provide guidance to the states as to how the Free Exercise Clause applies to the kind of stocking and dispensing regulations adopted by the State of Washington. This Note will further argue from a policy perspective that the approach to these kinds of regulations adopted by the Republic of Ireland (“ROI”) presents the best approach for states to adopt because it provides a balance in terms of respecting the free exercise rights of pharmacists and pharmacy owners with …

How Strong Does The Evidence Against Kavanaugh Need To Be?, Katherine A. Shaw

Faculty Online Publications

The allegation made by Christine Blasey Ford — that at age 15 she was the victim of a sexual assault by a 17-year-old Brett Kavanaugh — has not only upended Judge Kavanaugh’s Supreme Court confirmation hearings, but has also left Americans wondering what standards should apply to an accusation like this.