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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 …

‘Constitutionalizing The Harm Principle', 27(2) Criminal Justice Ethics 3 (2008), Dr. Dennis J. Baker

Dr. Dennis J Baker

In this paper, I argue that a constitutionalized Harm Principle could ensure that people are not jailed unless they deserve it. I do not aim to outline every possible type of bad consequence beyond harm that might be sufficiently serious to justify criminalization. Instead, I focus on criminalization that is backed up with jail terms and I argue that wrongful harm to others provides the only moral and constitutional justification for sending people to jail. Imprisonment harms the prisoner, so she should not be imprisoned unless she has caused proportionate harm to others. I argue that the sufficient conditions for …

"Nasty As They Wanna Be", Terri R. Day

Terri R. Day

"Nasty as They Wanna Be" reflects on the social and legal implications of campaign speech restrictions. On the heels of a vigorously fought presidential election, much of voters' and media attention focused on the tenor of the campaign ads and accusations. Although most states and municipalities have some type of "clean campaign" speech restrictions, this paper takes the view that such attempts are per se unconstitutional. The relevance of the "market place of ideas" and New York Times v. Sullivan remains paramount when government attempts to control the content of political discourse during campaigns.

"Nasty As They Wanna Be", Terri R. Day

Terri R. Day

"Nasty as They Wanna Be" reflects on the social and legal implications of campaign speech restrictions. On the heels of a vigorously fought presidential election, much of voters' and media attention focused on the tenor of the campaign ads and accusations. Although most states and municipalities have some type of "clean campaign" speech restrictions, this paper takes the view that such attempts are per se unconstitutional. The relevance of the "market place of ideas" and New York Times v. Sullivan remains paramount when government attempts to control the content of political discourse during campaigns.

"Nasty As They Wanna Be", Terri R. Day

Terri R. Day

"Nasty as They Wanna Be" reflects on the social and legal implications of campaign speech restrictions. On the heels of a vigorously fought presidential election, much of voters' and media attention focused on the tenor of the campaign ads and accusations. Although most states and municipalities have some type of "clean campaign" speech restrictions, this paper takes the view that such attempts are per se unconstitutional. The relevance of the "market place of ideas" and New York Times v. Sullivan remains paramount when government attempts to control the content of political discourse during campaigns.

Nasty As They Wanna Be, Terri R. Day

Terri R. Day

"Nasty as They Wanna Be" reflects on the social and legal implications of campaign speech restrictions. On the heels of a vigorously fought presidential election, much of voters' and media attention focused on the tenor of the campaign ads and accusations. Although most states and municipalities have some type of "clean campaign" speech restrictions, this paper takes the view that such attempts are per se unconstitutional. The relevance of the "market place of ideas" and New York Times v. Sullivan remains paramount when government attempts to control the content of political discourse during campaigns.

The Emerging First Amendment Law Of Managerial Prerogative, Lawrence Rosenthal

Lawrence Rosenthal

In Garcetti v. Ceballos, the Supreme Court, by the narrowest of margins, held that allegations of police perjury made in memoranda to his superiors by Richard Ceballos, a supervisory prosecutor in the Los Angeles County District Attorney’s office, were unprotected by the First Amendment because “his expressions were made pursuant to his duties. . . .” The academic reaction to this holding has been harshly negative; scholars argue that the holding will prevent the public from learning of governmental misconduct that is known only to those working within the bowels of the government itself.

This article rejects the scholarly consensus …

The Impact Of Information Overload On The Capital Jury's Ability To Assess Aggravating And Mitigating Factors, Michael J.Z. Mannheimer, Katie Morgan

Michael J.Z. Mannheimer

Since 1976, the U.S. Supreme Court has required that death penalty regimes meet two requirements. First, in order to minimize arbitrariness in the imposition of the death penalty, States must reserve capital punishment to a narrow class of offenders, those most deserving of death. States have done so by requiring that the prosecution prove at least one aggravating factor, i.e., some circumstance that separates the capital defendant on trial from those ineligible to be executed. Second, States must allow for individualization in sentencing by permitting the defendant to introduce mitigating evidence in order to persuade the jury that he is …

Mixed Messages: The Supreme Court’S Conflicting Decisions On Juries In Death Penalty Cases, Ken Miller, David Niven

Ken Miller

No abstract provided.

The Irresistible Force, Bruce A. Antkowiak

Bruce A Antkowiak

This article calls for the reformation of the doctrine that permits a legislature to assign to a defendant the burden of proving an issue in a criminal case to avoid conviction. It argues that such a doctrine violates the basic norms of the Constitution and the “jury right” that is at its core. That right includes the institution of the jury trial, the presumption of innocence and the burden on the government to prove its case beyond a reasonable doubt. It is violated by such a burden assignment just as the Apprendi line of cases holds that the shifting of …

The Emergence Of Transnational Constitutionalism: Its Features, Challenges And Solutions, Wen-Chen Chang, Jiunn-Rong Yeh

Wen-Chen Chang

Globalization and regional remapping have made unprecedented challenges to traditional understandings of constitutional and international laws. Not only constitutions may function across national borders but also international treaties and regional cooperative frameworks may deliver constitutional or quasi-constitutional functions. This paper aims at theorizing recent developments of transnational constitutionalism by examining its features, functions and characteristics. We find that transnational constitutionalism features transnational constitutional arrangements, transnational judicial dialogues and global convergence of national constitutions. Notwithstanding main functions in facilitating a global market, the development of transnational constitutionalism nevertheless undermines accountability, democracy and rule of law at both domestic and transnational levels. …

Separation Of Powers In The Hood, Clif Bennette

Clif Bennette

Explores whether local courts may order district attorneys to conduct sequential rather than traditional simultaneous lineups.

Conditional Rules In Criminal Procedure: Alice In Wonderland Meets The Constitution., David Rossman

David Rossman

Without recognizing that it has done so, the Supreme Court has created a category of constitutional rules of criminal procedure that are all in a peculiar format, conditional rules. A conditional rule depends on some future event to determine whether one has failed to honor it. In a wide variety of contexts, if a police officer, prosecutor, judge or defense attorney does something that the Constitution regulates, one cannot determine if the constitutional rule has been violated or not until some point in the future.

The Court has used three methods to create these rules. One looks to prejudice, and …

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 …

Peerage Privileges Since The House Of Lords Act 1999, Noel Cox

Noel Cox

The recent and ongoing reform of the House of Lords in the United Kingdom, which has thus far seen the passage of the House of Lords Act 1999, which excluded almost all hereditary peers and peeresses from the House, has focused attention upon the appointment process for membership of the upper house, whether hereditary, appointed, or elected. Less attention has been paid to the role of the peerage. Though officially it is said that any proposals for substantial reform of the composition of the Lords will have to look at the Lords’ role, powers and procedures and its relationship with …

The Legitimacy Of Government And The Normative Influence Of The Crown On A Political Construct, Noel Cox

Noel Cox

The Crown holds the conceptual place held by the State in those legal systems derived from or influenced by the Roman civil law. Not only does the Crown provide a legal basis for governmental action, but it provides some of the legal and political legitimacy for such action. The first section of this paper looks at what is meant by legitimacy, and its place in the constitutional order. The second section looks at challenges to this legitimacy. The third section examines the concept of the rule of law and the normative effect of the Crown, and how this has influenced …

The Second Amendment: Scope And Criminological Considerations, Clayton E. Cramer

Clayton E Cramer

The recent decision D.C. v. Heller (2008) has opened up the question of what the Second Amendment protects. What “arms” are protected? What classes of persons may be properly prohibited from being armed?

Does It Really Matter? Conservative Courts In A Conservative Era, Mark A. Graber

Mark Graber

This essay explores the likelihood that conservative federal courts in the near future will be agents of conservative social change. In particular, the paper assesses whether conservative justices on some issues will support more conservative policies than conservative elected officials are presently willing to enact and whether such judicial decisions will influence public policy. My primary conclusion is that, as long as conservatives remain politically ascendant in the elected branches of government, the Roberts Court is likely to influence American politics at the margins. The new conservative judicial majority is likely to be more libertarian than conservative majorities in the …

An Evaluation Of The Need For And Functioning Of The Federal Sentencing Guidelines In The United States And Nigeria, Victoria T. Kajo

Cornell Law School Inter-University Graduate Student Conference Papers

The United States Federal Sentencing Guidelines, in use since 1987, was set up to reduce disparity in sentencing and its application was made mandatory. Though there are a few who are in favor of the guidelines, the guidelines as mandatory have been severely criticized and many have called for their abolition. Consequently, in the twin cases of United States v. Booker and United States v. Fanfan (2005) 125 S.Ct. 738, the US Supreme Court delivered judgment that had the effect of making the guidelines discretionary.

While the Nigerian legal system shares a Common Law background with the United States, Nigeria …

Saiban In Seido: Lost In Translation?, Douglas G. Levin

Douglas G Levin

Japan plans to reintroduce a jury system in 2009. While most law review articles to date have focussed on the particular procedures of the proposed system as well as the implications of introducing a jury system in a stereotypically passive culture, this article proposes that the source of power underlying the proposed system will ultimately determine its fate. In short, for the proposed lay assessor system to achieve its goal of promoting democracy, its power must derive from the people rather than the government. Furthermore, Japan must consider fundamental changes to its criminal justice system so that its lay assessor …

“Cunningham V. California: The Clash Between Judicial Discretion And, George Reff

George Reff Jr.

No abstract provided.

Digitus Impudicus: The Middle Finger And The Law, Ira Robbins

Articles in Law Reviews & Other Academic Journals

The middle finger is one of the most commonly used insulting gestures in the United States. The finger, which is used to convey a wide range of emotions, is visible on streets and highways, in schools, shopping malls, and sporting events, in courts and execution chambers, in advertisements and on magazine covers, and even on the hallowed floor of the United States Senate. Despite its ubiquity, however, as a number of recent cases demonstrate, those who use the middle finger in public run the risk of being stopped, arrested, prosecuted, fined, and even incarcerated under disorderly conduct or breach of …

Digitus Impudicus: The Middle Finger And The Law, Ira P. Robbins

Ira P. Robbins

Methinks The Lady Doth Protest Too Little: Reassessing The Probative Value Of Silence, Mikah K. Story Thompson

Mikah K. Story Thompson

This article takes a fresh look at why individuals remain silent in the face of accusations by law enforcement. Traditionally, many courts have found that a defendant’s failure to protest her innocence reflects one of three things: (1) that the defendant has manifested her assent to the accusation by not responding; (2) that the defendant’s silence is a prior statement inconsistent with any testimony proclaiming innocence at trial; or (3) that the silence is substantive evidence of the defendant’s guilt. This article posits that a defendant’s silence actually means very little. Social science research regarding the possible meanings of silence …

“Cunningham V. California: The Clash Between Judicial Discretion And, George Reff

George Reff Jr.

No abstract provided.

“Cunningham V. California: The Clash Between Judicial Discretion And, George Reff

George Reff Jr.

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 …

While The Government Fiddled Around, The Big Easy Drowned: How The Posse Comitatus Act Became The Government's Alibi For The Hurricane Katrina Disaster, Candidus Dougherty

Candidus Dougherty

This Article analyzes how the government's blame of the Posse Comitatus Act (PCA) for its late response to the Hurricane Katrina disaster was misplaced. In Part One, I discuss the history of the Posse Comitatus Act, including a summary of some of its many judicial and congressional expansions. In Part Two, I apply the PCA to the Hurricane Katrina Disaster to show that, under its proper application, the PCA does, in fact, permit the lawful use of the military for humanitarian purposes. Based on this analysis, I conclude that we should focus our efforts less on the Posse Comitatus Act …

Let’S Not Jump To Conclusions: How Courts Should Approach Voting Rights Act Challenges To Felon Disenfranchisement Laws, Thomas G. Varnum

Thomas G Varnum

The focus of my article is felon disenfranchisement challenges under Section 2 of the Voting Rights Act. Section 2 prohibits states from denying or abridging the right to vote on account of race or color. Many felons have attempted to challenge felon disenfranchisement laws under Section 2. The general argument is that these laws have racially biased effects and thus may violate Section 2. However, a circuit split exists relative to whether courts can accept such challenges without violating the Constitution. I argue that both sides of the split are wrong. Specifically, courts do not have a standard analysis for …