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How Mandatory Are Mandatory Minimums? How Judges Can Avoid Imposing Mandatory Minimum Sentences, Nathan A. Greenblatt

Nathan A Greenblatt

Mandatory minimum sentences are anathema to judges due to, it is commonly said, judges’ “utter lack of power to do anything for the exceptional defendants that move them.” In the case of Weldon Angelos, for example, U.S. District Judge Paul Cassell lamented that sentencing Mr. Angelos to 55 years in prison “is unjust, cruel, and even irrational. [The court] reluctantly concludes that it has no choice.” The Judicial Conference has consistently opposed mandatory minimum sentences for more than 50 years, because it, too, has concluded that mandatory sentences give judges no choice in sentencing. Indeed, the U.S. Sentencing Commission recently …

Into The Twilight Zone: Informing Judicial Discretion In Federal Sentencing, Mary K. Ramirez

mary k ramirez

Into the Twilight Zone: Informing Judicial Discretion in Federal Sentencing

Recent changes in federal sentencing have shifted discretionary decision-making back to federal district court judges, while appellate courts review challenged sentences for reasonableness. Each judge brings considerable legal experience and qualifications to the bench, however, cultural experiences cannot necessarily prepare judges for the range of persons or situations they will address on the bench. Social psychologists who have studied social cognition have determined that the human brain creates categories and associations resulting in implicit biases and associations that are often unconscious or subconscious. Moreover, research suggests that such biases may …

Redefining Harm, Reimagining Remedies And Reclaiming Domestic Violence Law, Margaret Johnson

Margaret E Johnson

Women subjected to domestic violence are disserved by the civil domestic violence laws that should effectively address and redress their harms. The Civil Protective Order [CPO] laws should remedy all domestic abuse and not solely physical violence or criminal acts. All forms of abuse, including psychological, emotional, economic and physical abuse, cause severe emotional distress, physical harm, isolation, sustained fear, intimidation, poverty, degradation, humiliation, and coerced loss of autonomy. Moreover, all abuse is interrelated, because, as researchers have demonstrated, most domestic violence is the fundamental operation of systemic oppression through the exertion of power and control. Given the effectiveness of …

The Reagan Administration And The Rehnquist Court's New Federalism: Understanding The Role Of The Federalist Society, Amanda L. Hollis-Brusky

Amanda Hollis-Brusky

This article takes to task and complicates the narrative advanced by Professor Dawn Johnsen in her 2003 Indiana Law Review Article, “Ronald Reagan and the Rehnquist Court on Congressional Power: Presidential Influences on Constitutional Change.” Using evidence drawn from an in-depth examination of the speeches and writings of actors associated with both the early Federalists and the Reagan Administration, archival documents from the Ronald Reagan Presidential Library, as well as data gathered from personal interviews, this study presents a richer, more nuanced, and more complete narrative of the impact of the Reagan Revolution on the New Federalism. In sum, it …

Mining For Gold: The Constitutional Court Of South Africa's Experience With Comparative Constitutional Law, Ursula Bentele

Ursula Bentele

MINING FOR GOLD: THE CONSTITUTIONAL COURT OF SOUTH AFRICA’S EXPERIENCE WITH COMPARATIVE CONSTITUTIONAL LAW

Ursula Bentele

Abstract

Despite a long history of referring to foreign law in its opinions, the Supreme Court’s recent citations to such sources have caused heated controversy. Critics warn of threats to sovereignty as well as serious flaws in the way judges use outside authority. Largely missing from this debate is any probing examination of the actual practice of engaging with foreign authorities. This article attempts to fill the empirical void by analyzing closely one court that has used foreign law extensively: the Constitutional Court of …

Avoiding The 'Secret Sentence': A Model For Ensuring That New Jersey Criminal Defendants Are Advised About Immigration Consequences Before Entering Guilty Pleas, Joanne Gottesman

Joanne Gottesman

Reforms over the past decade have transformed the immigration law landscape and have led to more noncitizens than ever being subject to removal for less serious crimes than in the past. As a result of these changes, proper counseling of noncitizen criminal defendants is more critical than ever. This article examines the current state of the law in New Jersey regarding immigration related ineffective assistance of counsel claims and the responsibility of criminal defense attorneys to advise noncitizen clients about immigration consequences. It recommends judicial, legislative, and professional changes to better ensure that noncitizen defendants are properly advised about immigration …

Trapped In The Law? How Lawyers Reconcile The Legal And Social Aspects Of Their Work, Hadar Aviram

Hadar Aviram

This Article addresses an immensely important, and often neglected, problem faced by legal practitioners in their daily professional lives: how do legal actors feel, and act, when the cases in which they are involved have evident, and disturbing, socio-economic implications? This situation is particularly uncomfortable for prosecutors, judges, and defense attorneys, whose criminal case workload often reflects much deeper social inequalities and problems, and whose defendant population is characterized by an overrepresentation of disempowered groups. Legal actors who engage daily with "the tip of the social iceberg" in the courtroom are keenly aware of the broader aspects of the problem; …

Reconceptualizing Competence: An Appeal, Mae C. Quinn

Mae C. Quinn

This article builds on contemporary critiques of the justice system’s treatment of the mentally impaired, examining an important issue that until now has gone wholly unaddressed -- the effect of defendant impairment on the criminal appeals process. It argues that conventional wisdom stressing the importance of defendant competence during criminal trials but ignoring the incompetence of defendants during direct appeals makes little sense. Such an approach to defendant capacity not only fails to account for the realities of criminal practice, but works to undermine the fairness and efficacy of the American appellate process. Thus this paper calls for reconceptualization of …

Judiciary Must Take Bold Steps To Get Rid Of Backlog Of Cases, Dr. Zahidul Islam Biswas

Dr. Zahidul Islam

Backlog of cases appears to be a common predicament of the judiciaries worldwide. Countries from both developed and developing world have been facing this problem more or less alike. However, this difficulty for Bangladesh judiciary seems going from bad to worse every year. This article endeavours to explore the reasons behind the backlog of cases, and how to overcome the same.

Evidence-Based Practice To Reduce Recidivism: Implications For State Judiciaries, Roger K. Warren

Roger K Warren

No abstract provided.

The Unrealized Promise Of Section 1983 Method-Of-Execution Challenges, Liam J. Montgomery

Liam J Montgomery

Prior to Hill v. McDonough, federal courts largely viewed method-of-execution challenges as being cognizable only through a petition for habeas corpus. Because federal habeas doctrine involves significant restrictions, such challenges were often difficult, if not impossible, to bring. This was particularly true, for instance, where an inmate had already litigated his first habeas petition and attempted to bring a later habeas corpus execution-protocol challenge: the rules against successive petitions nearly always prevented it, regardless of any newly-revealed factual or legal predicates for the challenge.

But Hill (and a predecessor case, Nelson v. Campbell) changed this framework: inmates could now challenge …

Life And Death Decisions: Prosecutorial Discretion And Capital Punishment In Missouri, Katherine Barnes, David Sloss, Stephen Thaman

Katherine Barnes kbarnes@.wulaw.wustl.edu

This article presents the results of an empirical study of intentional homicide cases in Missouri. The authors created a database of 1046 cases; it includes substantially all of the homicide cases prosecuted in Missouri over a five year period that were initially charged as murder or voluntary manslaughter and that yielded criminal convictions. The authors selected 247 cases from the larger database for more detailed analysis. We analyzed geographic and racial disparities in the rates at which: prosecutors charge first-degree murder versus lesser charges; prosecutors seek the death penalty, not lesser punishments; defendants are convicted of first-degree murder versus lesser …

An Aesthetic Defense Of The Non-Precedential Opinion: The Easy Cases Debate In The Wake Of The 2007 Amendments To The Federal Rules Of Appellate Procedure, Caleb E. Mason

Caleb E. Mason

Abstract: In this article I extol the virtues of the short, nonprecedential opinions (NPOs) that make up more than 80% of the output of the courts of appeals. The recent amendment to Fed. R. App. Proc. 32.1(a), requiring that all circuits allow citation to nonprecedential opinions, has provoked considerable debate about how, and whether, to issue opinions in the class of cases currently resolved by NPOs. I defend the issuance of NPOs not as a necessary concession to overwork, but rather as a valuable decisional form that plays a useful if not vital role in inculcating in practitioners the perceptual …

Green-Lighting Brown: A Cumulative-Process Conception Of Judicial Impact, Vincent James Strickler

Vincent James Strickler

Disagreement over the meaning and power of Brown v. Board of Education is part of a larger debate about the capacity of the courts to influence social change. A “down with Brown” movement denies that the iconic case changed America. But, an examination of 68 United States Supreme Court cases (particularly the paradigm-shifting case of Green v. County School Board) and 414 Federal District Court cases, from 1944 through 1974, reveals a cumulative-judicial process that correlates well (and better than legislative efforts) with actual desegregation successes. Considering a “Green-lighted” Brown, rather than the historic case in isolation, better reveals the …

The Immoral Application Of Exclusionary Rules, Todd E. Pettys

Todd E. Pettys

In both civil and criminal cases today, judges routinely withhold relevant evidence from jurors, fearing that jurors would use it in an irrational or legally impermissible manner. Forcing jurors to take responsibility for a verdict based upon a government-screened pool of evidence stands in sharp contrast to the way we ordinarily think about government efforts to withhold potentially useful information from citizens faced with important decisions. The First Amendment’s guarantee of the freedom of speech, for example, reflects a moral judgment that the government offends its citizens’ deliberative autonomy when it restricts speech based upon fears about what that speech …