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Tasing The Constitution: Conducted Electrical Weapons, Other Forceful Arrest Means, And The Validity Of Subsequent Constitutional Rights Waivers, Andreas Kuersten

William & Mary Bill of Rights Journal

Conducted electrical weapons (CEWs)—the most famous and widely used of which are offered under the TASER brand—are ubiquitous tools of law enforcement, carried by the vast majority of law enforcement officers and routinely deployed. These devices subdue targets by coursing electric current through their bodies, thereby causing individuals to collapse as their muscles involuntarily contract. Yet this method of operation has raised concerns—voiced by researchers, advocates, and criminal defendants alike—that CEWs influence cognitive capacity in addition to muscle function as electric current potentially transits through the brain via the central nervous system. In the context of an arrest, this implicates …

Human Rights In International Criminal Proceedings—The Impact Of The Judgment Of The Kosovo Specialist Chambers Of 26 April 2017, Göran Sluiter

William & Mary Bill of Rights Journal

By their very nature, international criminal tribunals will in their operation impact individual rights, such as the right to liberty and the right to a fair trial. Without a constitution and without a history in developing due process norms, international criminal tribunals have to provide for instant incorporation of human rights in their respective criminal proceedings.

However, the circumstances under which international criminal tribunals are established are often complex, while at the same time their creation is considered to be a matter of urgency. As a result, there may not always be sufficient attention to human rights law’s position and …

Some Form Of Punishment: Penalizing Women For Abortion, Mary Ziegler

William & Mary Bill of Rights Journal

In 2016, Donald Trump ignited a political firestorm when he suggested that women should be punished for having abortions. Although he backtracked, Trump’s misstep launched a debate about whether women have been or should be punished for having abortions. At the same time, Trump’s comments revealed that punishing women has become far more than an abstraction. In 2016, Indiana resident Purvi Patel became just the most recent visible example when she was sentenced to twenty years for feticide and child neglect for inducing an abortion.

But in spite of the furor created by Trump’s comment and Patel’s conviction, the history …

Touch Dna And Chemical Analysis Of Skin Trace Evidence: Protecting Privacy While Advancing Investigations, Mary Graw Leary

William & Mary Bill of Rights Journal

This Article addresses touch DNA, chemical analysis of skin traces, and the implications for crime scene investigation, arguing that changes in how trace evidence is analyzed require alterations in the law’s approach to its use. Part I discusses the history of traditional DNA analysis. Part II examines the emergence of touch DNA and related technologies and how they differ from traditional DNA analysis. Part III outlines the specific risks created by the collection and storing of results under the current outdated jurisprudence. Part IV focuses on specific risks to suspects and victims of crime. Part V proposes a legal framework …

Warning: Stop-And-Frisk May Be Hazardous To Your Health, Josephine Ross

William & Mary Bill of Rights Journal

No abstract provided.

Sex Offender Residency Restrictions: Government Regulation Of Public Health, Safety, And Morality, John Kip Cornwell

William & Mary Bill of Rights Journal

Sex offender residency restrictions have proliferated throughout the United States over the past decade. A number of commentators have likened these laws to medieval banishment, when political outcasts and undesirables are exiled to remote areas where they cannot threaten civilized society. This Article argues first that likening modern residency restrictions to “banishment” largely misconstrues this practice as it has been practiced historically. Instead, these statutory initiatives are better understood as an assertion of governments’ police power to protect public health, safety, and morality. Seen through this lens, this Article evaluates the laws’ constitutional sufficiency with attention to their allegedly punitive …

Does Atkins Make A Difference In Non-Capital Cases? Should It?, Paul Marcus

William & Mary Bill of Rights Journal

No abstract provided.

The Daryl Atkins Story, Mark E. Olive

William & Mary Bill of Rights Journal

No abstract provided.

A Tale Of Two (And Possibly Three) Atkins: Intellectual Disability And Capital Punishment Twelve Years After The Supreme Court’S Creation Of A Categorical Bar, John H. Blume, Sheri Lynn Johnson, Paul Marcus, Emily Paavola

William & Mary Bill of Rights Journal

No abstract provided.

Scientizing Culpability: The Implications Of Hall V. Florida And The Possibility Of A “Scientific Stare Decisis”, Christopher Slobogin

William & Mary Bill of Rights Journal

The Supreme Court’s decision in Hall v. Florida held that “clinical definitions” control the meaning of intellectual disability in the death penalty context. In other words, Hall “scientized” the definition of a legal concept. This Article discusses the implications of this unprecedented move. It also introduces the idea of scientific stare decisis—a requirement that groups that are scientifically alike be treated similarly for culpability purposes—as a means of implementing the scientization process.

Challenges Of Conveying Intellectual Disabilities To Judge And Jury, Caroline Everington

William & Mary Bill of Rights Journal

No abstract provided.

What Matters More: A Day In Jail Or A Criminal Conviction?, John P. Gross

William & Mary Bill of Rights Journal

No abstract provided.

International Perspectives On Correcting Wrongful Convictions: The Scottish Criminal Cases Review Commission, Lissa Griffin

William & Mary Bill of Rights Journal

No abstract provided.

Protecting Victims From Themselves, But Not Necessarily From Abusers: Issuing A No-Contact Order Over The Objection Of The Victim-Spouse, Robert F. Friedman

William & Mary Bill of Rights Journal

No abstract provided.

Misnamed, Misapplied, And Misguided: Clarifying The State Of Sentencing Entrapment And Proposing A New Conception Of The Doctrine, Jess D. Mekeel

William & Mary Bill of Rights Journal

No abstract provided.

Use Of The Drug Pavulon In Lethal Injections: Cruel And Unusual, Casey Lynne Ewart

William & Mary Bill of Rights Journal

No abstract provided.

Cleaning Up The Eighth Amendment Mess, Tom Stacy

William & Mary Bill of Rights Journal

This article criticizes the Court's interpretation of the Eighth Amendment's Cruel and Unusual Punishment Clause and offers its own understanding. The Court's jurisprudence is plagued by deep inconsistencies concerning the Amendment's text, the Court's own role, and a constitutional requirement of proportionate punishment. In search of ways to redress these fundamental shortcomings, the article explores three alternative interpretations of the Clause: (1) a textualist approach; (2) Justice Scalia's understanding that the Clause forbids only punishments unacceptable for all offenses; and (3) a majoritarian approach that would consistently define cruel and unusual punishment in terms of legislative judgments and penal custom. …

Death, Dissent, And Diplomacy: The U.S. Death Penalty As An Obstacle To Foreign Relations, Mark Warren

William & Mary Bill of Rights Journal

No abstract provided.

International Law, Politics, Diplomacy And The Abolition Of The Death Penalty, William A. Schabas

William & Mary Bill of Rights Journal

No abstract provided.

The Extraordinary Execution Of Billy Vickers, The Banality Of Death, And The Demise Of Post-Conviction Review, David R. Dow, Jim Marcus, Morris Moon, Jared Tyler, Greg Wiercioch

William & Mary Bill of Rights Journal

No abstract provided.

From Breard To Atkins To Malvo: Legal Incompetency And Human Rights Norms On The Fringes Of The Death Penalty, Linda A. Malone

William & Mary Bill of Rights Journal

No abstract provided.

Retroactivity Of New Rules Of Constitutional Law: Why The Supreme Court Should Have Overturned Warren Summerlin's Unconstitutional Death Sentence, Sarah R. Green

William & Mary Bill of Rights Journal

No abstract provided.

Affecting Eternity: The Court's Confused Lesson In Board Of Education V. Earls, George M. Dery Iii

William & Mary Bill of Rights Journal

In Board of Education v. Earls, the US. Supreme Court found the random drug testing of schoolchildren who participated in extracurricular activities to be reasonable under the Fourth Amendment. In this Article, Professor Dery argues that this latest extension of the special needs doctrine is both patronizing to student privacy interests and inconsistent with the Court's previous limitation of suspicionless searches in New Jersey v. T.L.O. and Chandler v. Miller. Professor Dery criticizes the Court's Earls decision as a confused lesson in constitutional law, abandoning the very fundamentals of the Fourth Amendment.

Islam And The Death Penalty, William A. Schabas

William & Mary Bill of Rights Journal

Capital punishment is not practiced by a majority of the world's states. Anti-capital punishment domestic policies have led to an international law of human rights that emphatically prohibits cruel and inhuman punishment. International concern for the abolition of capital punishment has prompted Islamic states that still endorse and practice the death penalty to respond with equally compelling concerns based on the tenets of Islamic law. Professor William A. Schabas suggests that Islamic states view capital punishment according to the principles embodied in the Koran. Islamic law functions on the belief that all people have a right to life unless the …

The Role Of Organized Religions In Changing Death Penalty Debates, Michael L. Radelet

William & Mary Bill of Rights Journal

In his Article, Professor Michael L. Radelet describes a global decline in the use of the death penalty, the United Nation's progressively stronger stance against executions, and a growing opposition to capital punishment in the United States. This decrease is attributed to both empirical studies casting doubt on the death penalty's efficacy in promoting its stated underlying goals, and to the increasingly vocal stance of religious leaders morally opposed to capital punishment. Nevertheless, the decline in other justifications for capital punishment has been met with increasing reliance on retribution as the primary argument in its support. Professor Radelet argues that …

Religious Conservatives And The Death Penalty, Thomas C. Berg

William & Mary Bill of Rights Journal

With the increased fervor surrounding the death penalty, many religious sects have re-examined their position on this issue. New statistics concerning possible discrimination in the application of the death penalty prompted several religious groups to call for a moratorium on the death penalty. In this Essay, Professor Thomas C. Berg examines how religious conservatives, especially Roman Catholics and evangelical Protestants, have dealt with the recent concerns over the death penalty. Part I of the Essay documents how Roman Catholics and evangelical Protestants traditionally approach the death penalty. In this section, Professor Berg concludes that critics of the death penalty can …

Capital Punishments And Religious Arguments: An Intermediate Approach, Samuel J. Levine

William & Mary Bill of Rights Journal

Determining the place and use of capital punishment in the American legal system is a challenging affair and one that is closely associated with and determined by religion's role in American legal decision-making. Both capital punishment and religion are controversial issues, and tend to challenge legal scholars and practitioners about whether they should function together or alone as valid parts of the legal system in the United States. Professor Levine argues that religious arguments should be employed to interpret and explain American legal thought when the need or proper situation arises. He uses capital punishment as an example of how …

Criminal Conspiracy Law: Time To Turn Back From An Ever Expanding, Ever More Troubling Area, Paul Marcus

William & Mary Bill of Rights Journal

No abstract provided.