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Taking The Gavel Away From The Executive Branch: The Indeterminate Sentencing Scheme Under S.B. 201 Is Ripe For Review And Unconstitutional, Jessica Crtalic

Cleveland State Law Review

In 2019, Senate Bill 201, also known as the Reagan Tokes Act, reintroduced an indeterminate sentencing scheme in Ohio whereby sentences are assigned in the form of a range. Under this sentencing scheme, the Ohio Department of Rehabilitation and Correction, through the parole board, has discretion to retain an inmate past the presumptive release date. This fails to afford the accused their guaranteed right to a jury trial, improperly places judiciary power in the hands of the executive branch, and scrutinizes the violation of due process such that the defendant is being denied a fair hearing and notice. Not only …

Due Process Junior: Competent (Enough) For The Court, Tigan Woolson

Journal of Law and Health

There are many reports presenting expert policy recommendations, and a substantial volume of research supporting them, that detail what should shape and guide statutes for juvenile competency to stand trial. Ohio has adopted provisions consistent with some of these recommendations, which is better protection than relying on case law and the adult statutes, as some states have done. However, the Ohio statute should be considered a work in progress.

Since appeals courts are unlikely to provide meaningful review for the substance of a juvenile competency determination, the need for procedures for ensuring that the determination is initially made in a …

Kangaroo Courts, Shaun Ossei-Owusu

All Faculty Scholarship

Kangaroo courts are seemingly everywhere and nowhere. Legal actors often use this term to describe substandard and defective tribunals across various areas of American law. Yet there are few scholarly treatments of this evocative term. Without embracing this specific description, Professor Alexandra Natapoff’s Criminal Municipal Courts provides vivid insights into a rarely explored world of administration that has many of the trappings of kangaroo courts. Natapoff catalogs how municipal courts — also referred to as “town,” “summary,” “justice,” “mayor,” and “police” courts — are sometimes replete with conflicts of interests, shockingly staffed with nonlawyer judges, and often flouting standard criminal …

Pretrial Detention Of Indigents: A Standard Analysis Of Due Process And Equal Protection Claims, Robert William G. Wright

Georgia Law Review

Over the past several years, criminal justice activists
have sought to reform misdemeanor bail policies that
condition pretrial release on an arrestee’s ability to pay
a predetermined cash bond. Activists have challenged
such bail polices by filing lawsuits on behalf on indigent
persons who have been exposed to such policies. Often,
these lawsuits allege that bail policies violate both the
Due Process and Equal Protection Clauses of the
Fourteenth Amendment. While due process and equal
protection analyses are generally well-defined, U.S.
Supreme Court precedent does not offer a clear analysis
for courts to apply to due process and equal protection …

Police Brutality And State-Sanctioned Violence In 21st Century America, Itohen Ihaza

Journal of Race, Gender, and Ethnicity

No abstract provided.

The Inconvenience Of Justice: How Unmitigated Official Misconduct Almost Destroyed The Lives Of Five Young Boys From Harlem, Stefania Bordone, David Wright

Journal of Race, Gender, and Ethnicity

No abstract provided.

Detention By Any Other Name, Sandra G. Mayson

All Faculty Scholarship

An unaffordable bail requirement has precisely the same effect as an order of pretrial detention: the accused person is jailed pending trial. It follows as a logical matter that an order requiring an unaffordable bail bond as a condition of release should be subject to the same substantive and procedural protections as an order denying bail altogether. Yet this has not been the practice.

This Article lays out the logical and legal case for the proposition that an order that functionally imposes detention must be treated as an order of detention. It addresses counterarguments and complexities, including both empirical and …

Boots And Bail On The Ground: Assessing The Implementation Of Misdemeanor Bail Reforms In Georgia, Andrea Woods, Sandra G. Mayson, Lauren Sudeall, Guthrie Armstrong, Anthony Potts

All Faculty Scholarship

This Article presents a mixed-methods study of misdemeanor bail practice across Georgia in the wake of reform. We observed bail hearings and interviewed system actors in a representative sample of fifty-five counties to assess the extent to which pretrial practice conforms to legal standards clarified in Senate Bill 407 and Walker v. Calhoun. We also analyzed jail population data published by county jails and by the Georgia Department of Community Affairs. We found that a handful of counties have made promising headway in adhering to law and best practices, but that the majority have some distance to go. Most …

The Practitioner’S Guide To Due Process Issues In Veteranstreatment Courts, Evan C. Tsai

Mitchell Hamline Law Review

No abstract provided.

Proposing A One-Year Time Bar For 8 U.S.C. § 1226(C), Jenna Neumann

Michigan Law Review

Section 1226(c) of the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) requires federal detention of certain deportable noncitizens when those noncitizens leave criminal custody. This section applies only to noncitizens with a criminal record (“criminal noncitizens”). Under section 1226(c), the Attorney General must detain for the entire course of his or her removal proceedings any noncitizen who has committed a qualifying offense “when the alien is released” from criminal custody. Courts construe this phrase in vastly different ways when determining whether a criminal noncitizen will be detained. The Board of Immigration Appeals (BIA) and the Fourth Circuit read “when …

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

Georgia Journal of International & Comparative Law

No abstract provided.

Are Campus Sexual Assault Tribunals Fair?: The Need For Judicial Review And Additional Due Process Protections In Light Of New Case Law, Emily D. Safko

Fordham Law Review

The pervasiveness of sexual assault on college and university campuses and the schools’ failures to take sexual assault seriously have resulted in recent reforms to college campus disciplinary proceedings. The federal government has largely prompted this wave of reform through Title IX, requiring schools to employ particular policies and procedures for investigating and adjudicating sexual assault as a condition of receiving federal funds. Although the federal government’s mandates may be properly motivated, these reforms are criticized because they encourage schools to enact procedures that are heavily stacked against those accused of sexual assault. Consequently, students alleging that they have been …

Confessions In An International Age: Re-Examining Admissibility Through The Lens Of Foreign Interrogations, Julie Tanaka Siegel

Michigan Law Review

In Colorado v. Connelly the Supreme Court held that police misconduct is necessary for an inadmissible confession. Since the Connelly decision, courts and scholars have framed the admissibility of a confession in terms of whether it successfully deters future police misconduct. As a result, the admissibility of a confession turns largely on whether U.S. police acted poorly, and only after overcoming this threshold have courts considered factors pointing to the reliability and voluntariness of the confession. In the international context, this translates into the routine and almost mechanic admission of confessions— even when there is clear indication that the confession …

Futility Of Exhaustion: Why Brady Claims Should Trump Federal Exhaustion Requirements, Tiffany R. Murphy

Tiffany R Murphy

A defendant’s Fourteenth Amendment due process rights are violated when a state agency fails to disclose crucial exculpatory or impeachment evidence — so-called Brady violations. When this happens, the defendant should be provided the means not only to locate this evidence, but also to fully develop it in state post-conviction processes. When the state system prohibits both the means and legal mechanism to develop Brady claims, the defendant should be immune to any procedural penalties in either state or federal court. In other words, the defendant should not be required to return to state court to exhaust such a claim. …

Unreasonable Doubt: Warren Hill, Aedpa, And The Unconstitutionality Of Georgia's Reasonable Doubt Standard, Adam Lamparello

Adam Lamparello

Georgia’s “beyond a reasonable doubt” standard for determining intellectual disability has led to an absurd—and arbitrary—result. A Georgia state court held that defendant Warren Hill was intellectually disabled, yet still sentenced Hill to death. Seven experts—and the court—deemed Hill disabled under a preponderance of the evidence standard. He remains on death row, however, because Georgia’s “preposterous burden of proof” requires that intellectual disability be proved beyond a reasonable doubt, a standard experts have said is nearly impossible to satisfy. It “effectively limits the constitutional right protected in Atkins,” and creates a conditional, not categorical, ban.

Gideon V. Wainwright--From A 1963 Perspective, Jerold H. Israel

Articles

Gideon v. Wainwright is more than a “landmark” Supreme Court ruling in the field of constitutional criminal procedure. As evidenced by the range of celebrators of Gideon’s Fiftieth Anniversary (extending far beyond the legal academy) and Gideon’s inclusion in the basic coverage of high school government courses, Gideon today is an icon of the American justice system. I have no quarrel with that iconic status, but I certainly did not see any such potential in Gideon when I analyzed the Court’s ruling shortly after it was announced in March of 1963. I had previously agreed to write an article for …

Futility Of Exhaustion: Why Brady Claims Should Trump Federal Exhaustion Requirements, Tiffany R. Murphy

University of Michigan Journal of Law Reform

A defendant’s Fourteenth Amendment due process rights are violated when a state agency fails to disclose crucial exculpatory or impeachment evidence — so-called Brady violations. When this happens, the defendant should be provided the means not only to locate this evidence, but also to fully develop it in state post-conviction processes. When the state system prohibits both the means and legal mechanism to develop Brady claims, the defendant should be immune to any procedural penalties in either state or federal court. In other words, the defendant should not be required to return to state court to exhaust such a claim. …

Correcting Criminal Justice Through Collective Experience Rigorously Examined, James S. Liebman, David Mattern

Faculty Scholarship

Federal and state law confers broad discretion on courts to administer the criminal laws, impose powerful penalties, and leave serious criminal behavior unpunished. Each time an appellate court reviews a criminal verdict, it performs an important systemic function of regulating the exercise of that power. Trial courts do the same when, for example, they admit or exclude evidence generated by government investigators. For decades, judicial decisions of this sort have been guided by case law made during the Supreme Court's Criminal Procedure Revolution of the 1960s and 1970s. It is becoming increasingly clear, however, that the rule-bound, essentially bureaucratic regulatory …

The Right To Counsel For Indians Accused Of Crime: A Tribal And Congressional Imperative, Barbara L. Creel

Michigan Journal of Race and Law

Native American Indians charged in tribal court criminal proceedings are not entitled to court appointed defense counsel. Under well-settled principles of tribal sovereignty, Indian tribes are not bound by Fifth Amendment due process guarantees or Sixth Amendment right to counsel. Instead, they are bound by the procedural protections established by Congress in the Indian Civil Rights Act of 1968. Under the Indian Civil Rights Act (ICRA), Indian defendants have the right to counsel at their own expense. This Article excavates the historical background of the lack of counsel in the tribal court arena and exposes the myriad problems that it …

The Constitutionality Of The Federal Sentencing Reform Act After Mistretta V. United States, Charles R. Eskridge Iii

Pepperdine Law Review

No abstract provided.

Lassiter V. Department Of Social Services: Why Is It Such A Lousy Case?, Brooke D. Coleman

Nevada Law Journal

No abstract provided.

John Paul Stevens And Equally Impartial Government, Diane Marie Amann

Scholarly Works

This article is the second publication arising out of the author's ongoing research respecting Justice John Paul Stevens. It is one of several published by former law clerks and other legal experts in the UC Davis Law Review symposium edition, Volume 43, No. 3, February 2010, "The Honorable John Paul Stevens."

The article posits that Justice Stevens's embrace of race-conscious measures to ensure continued diversity stands in tension with his early rejections of affirmative action programs. The contrast suggests a linear movement toward a progressive interpretation of the Constitution’s equality guarantee; however, examination of Stevens's writings in biographical context reveal …

Litigation Strategies For Dealing With The Indigent Defense Crisis, Eve Brensike Primus

Articles

The indigent defense delivery system in the United States is in a state of crisis. Public defenders routinely handle well over 1,000 cases a year, more than three times the number of cases that the American Bar Association says one attorney can handle effectively. As a result, many defendants sit in jail for months before even speaking to their court-appointed lawyers. And when defendants do meet their attorneys, they are often disappointed to learn that these lawyers are too overwhelmed to provide adequate representation. With public defenders or assigned counsel representing more than 80% of criminal defendants nationwide, the indigent …

A Structural Vision Of Habeas Corpus, Eve Brensike Primus

Articles

As scholars have recognized elsewhere in public law, there is no hermetic separation between individual rights and structural or systemic processes of governance. To be sure, it is often helpful to focus on a question as primarily implicating one or the other of those categories. But a full appreciation of a structural rule includes an understanding of its relationship to individuals, and individual rights can both derive from and help shape larger systemic practices. The separation of powers principle, for example, is clearly a matter of structure, but much of its virtue rests on its promise to help protect the …

The Accounting: Habeas Corpus And Enemy Combatants, Emily Calhoun

Publications

The judiciary should impose a heavy burden of justification on the executive when a habeas petitioner challenges the accuracy of facts on which an enemy combatant designation rests. A heavy burden of justification will ensure that the essential institutional purposes of the writ--and legitimate, separated-powers government--are preserved, even during times of national exigency. The institutional purposes of the writ argue for robust judicial review rather than deference to the executive. Moreover, the procedural flexibility traditionally associated with the writ gives the judiciary the tools to ensure that a heavy burden of justification can be imposed.

Confronting Death: Sixth Amendment Rights At Capital Sentencing, John G. Douglass

Law Faculty Publications

The Court's fragmentary approach has taken pieces of the Sixth Amendment and applied them to pieces of the capital sentencing process. The author contends that the whole of the Sixth Amendment applies to the whole of a capital case, whether the issue is guilt, death eligibility, or the final selection of who lives and who dies. In capital cases, there is one Sixth Amendment world, not two. In this Article, he argues for a unified theory of Sixth Amendment rights to govern the whole of a capital case. Because both Williams and the Apprendi-Ring-Booker line of cases purport to rest …

Due Process And Problem Solving Courts, Eric Lane

Fordham Urban Law Journal

This article addresses the model of the problem-solving courts, beginning with the 1989 Dade County, Florida drug court and the role of the pro-active problem solving judge as presented by Judge Lederman of the Dade County drug court. The article reviews the role of the pro-active problem-solving judge in light of the defendants due process rights. After reviewing several case studies, transcripts, and literature on the issue, the article concludes that problem-solving judging and lawyering need not be in conflict with due process standards.

Due Process And Problem Solving Courts, Eric Lane

Fordham Urban Law Journal

This article addresses the model of the problem-solving courts, beginning with the 1989 Dade County, Florida drug court and the role of the pro-active problem solving judge as presented by Judge Lederman of the Dade County drug court. The article reviews the role of the pro-active problem-solving judge in light of the defendants due process rights. After reviewing several case studies, transcripts, and literature on the issue, the article concludes that problem-solving judging and lawyering need not be in conflict with due process standards.

Fallen Superheroes And Constitutional Mirages: The Tale Of Brady V. Maryland, Scott E. Sundby

Articles

No abstract provided.

Free-Standing Due Process And Criminal Procedure: The Supreme Court's Search For Interpretive Guidelines, Jerold H. Israel

Articles

When I was first introduced to the constitutional regulation of criminal procedure in the mid-1950s, a single issue dominated the field: To what extent did the due process clause of the Fourteenth Amendment impose upon states the same constitutional restraints that the Fourth, Fifth, Sixth and Eighth Amendments imposed upon the federal government? While those Bill of Rights provisions, as even then construed, imposed a broad range of constitutional restraints upon the federal criminal justice system, the federal system was (and still is) minuscule as compared to the combined systems of the fifty states. With the Bill of Rights provisions …