Law Commons^™

The High Price Of Poverty: A Study Of How The Majority Of Current Court System Procedures For Collecting Court Costs And Fees, As Well As Fines, Have Failed To Adhere To Established Precedent And The Constitutional Guarantees They Advocate., Trevor J. Calligan

Trevor J Calligan

No abstract provided.

Jones, Lackey, And Teague, Richard Broughton

Richard Broughton

In a recent, high-profile ruling, a federal court finally recognized that a substantial delay in executing a death row inmate violated the Eighth Amendment’s ban on cruel and unusual punishments. Courts have repeatedly rejected these so-called “Lackey claims,” making the federal court’s decision in Jones v. Chappell all the more important. And yet it was deeply flawed. This paper focuses on one of the major flaws in the Jones decision that largely escaped attention: the application of the non-retroactivity rule from Teague v. Lane. By comprehensively addressing the merits of the Teague bar as applied to Lackey claims, and making …

The Homicide Survivors’ Fairness-For-Victims Manifesto, Lester Jackson

LESTER JACKSON

Murderer advocates place a far greater value on the lives of the most savage murderers than on the lives of their victims. Let them deny it; their words and deeds conclusively give the lie to that denial. The critical question is this: Whose concept of justice is going to prevail? The concept of a small but vocal well-financed minority with influence and power out of all proportion to its numbers, or that of the large but poorly financed and disorganized majority. In recent decades, the former have dominated. Tragically, compared to media-dominant murderer advocates, victims have been virtually voiceless. Yes, …

Hall V. Florida: The Death Of Georgia's Beyond A Reasonable Doubt Standard, Adam Lamparello

Adam Lamparello

Welcome: We’re Glad Georgia is On Your Mind.

Georgia is on many minds as Warren Hill prepares for a state court hearing to once again begin the process of trying to show that he is intellectually disabled. As Warren Hill continues to flirt with death, one must ask, is Georgia really going to execute someone that nine experts and a lower court twice found to be mentally retarded? The answer is yes, and the Georgia courts do not understand why we are scratching our heads. The answer is simple: executing an intellectually disabled man is akin to strapping a ten-year …

Immigrants Unshackled: The Unconstitutional Use Of Indiscriminate Restraints, Fatma E. Marouf

Fatma E Marouf

This Article challenges the constitutionality of indiscriminately restraining civil immigration detainees during removal proceedings. Not only are immigration detainees routinely placed in handcuffs, leg irons, and belly chains without any individualized determination of the need for restraints, but Immigration and Customs Enforcement (ICE), the prosecuting party, makes the decisions about the use of restraints, rather than the judge. After examining the rationale for the well-established prohibition against the indiscriminate use of restraints during criminal and civil jury trials, and discussing how some courts have extended this rationale to bench trials, this Article contends that ICE’s practice violates substantive and procedural …

Brief Of Amici Curiae -- Heien V. State Of North Carolina, Charles E. Maclean, Adam Lamparello

Adam Lamparello

Reasonable suspicion of unlawful activity cannot be predicated on conduct that does not violate the law. Put differently, if reasonableness — or reasonable suspicion — is to mean anything, it means that apparent violations of the law must be based on actual violations of the law. The North Carolina Supreme Court’s decision sends a message to drivers throughout the country that they cannot be wrong about what the law requires, even where law enforcement is wrong — dead wrong — about what the law proscribes.

You Booze, You Bruise, You Lose: Analyzing The Constitutionality Of Florida’S Involuntary Blood Draw Statute In The Wake Of Missouri V. Mcneely, Francisco D. Zornosa

Francisco D Zornosa

No abstract provided.

The Evolution Of The Digital Millennium Copyright Act; Changing Interpretations Of The Dmca And Future Implications For Copyright Holders, Hillary A. Henderson

Hillary A Henderson

Copyright law rewards an artificial monopoly to individual authors for their creations. This reward is based on the belief that, by granting authors the exclusive right to reproduce their works, they receive an incentive and means to create, which in turn advances the welfare of the general public by “promoting the progress of science and useful arts.” Copyright protection subsists . . . in original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or …

Paroline, Restitution, And Transferred Scienter: Child Pornography Possessors And Restitution Based On A Commerce-Clause Derived, Aggregate Proximate Cause Theory, Adam Lamparello, Charles Maclean

Adam Lamparello

This Article responds to the Fifth Circuit’s decision in In re Amy Unknown, which is before the United States Supreme Court on granted writ of certiorari. This Article poses a more logical and legal construct, derived from Commerce Clause analysis, that although each individual possessor of child pornography appears to contribute almost imperceptibly to the victim’s harm, the aggregate effect of possession is sufficient to satisfy the causal nexus required for restitution.

Amicus Brief -- Freddie Lee Hall V. State Of Florida, Adam Lamparello, Charles Maclean

Adam Lamparello

IQ cutoffs violate the Constitution. In Atkins v. Virginia, the United States Supreme Court recognized three distinct components to intellectual disability: (1) an intelligence quotient; (2) deficits in adaptive functioning; and (3) onset prior to eighteen. The Florida Supreme Court interpreted Fla. Stat. § 921.137(1) to bar evidence of adaptive disability and early onset if a defendant scored above a 70 on an IQ test. As Justice Perry recognized in his partial dissent, that interpretation will lead to the execution of a retarded man. The Amicus brief argues that the Florida Supreme Court's decision should be reversed because it prohibits …

Back To The Future: Returning To Reasonableness And Particularity Under The Fourth Amendment, Adam Lamparello, Charles Maclean

Adam Lamparello

Issuing one-hundred or fewer opinions per year, the United States Supreme Court cannot keep pace with opinions that match technological advancement. As a result, in Riley v. California and United States v. Wurie, the Court needs to announce a broader principle that protects privacy in the digital age. That principle, what we call “seize but don’t search,” recognizes that the constitutional touchstone for all searches is reasonableness. When do present-day circumstances—the evolution in the Government’s surveillance capabilities, citizens’ phone habits, and the relationship between the NSA and telecom companies—become so thoroughly unlike those considered by the Supreme Court thirty-four years …

Amicus Brief -- Riley V. California And United States V. Wurie, Charles E. Maclean, Adam Lamparello

Adam Lamparello

Warrantless searches of cell phone memory—after a suspect has been arrested, and after law enforcement has seized the phone—would have been unconstitutional at the time the Fourth Amendment was adopted, and are unconstitutional now. Simply stated, they are unreasonable. And reasonableness—not a categorical warrant requirement—is the “touchstone of Fourth Amendment analysis.”

The Rise And Fall Of The Exclusionary Rule, Albert E. Poirier Jr.

Albert E Poirier Jr.

The years between 1913 and 1967 saw a growing tendency on the part of the Supreme Court to allow the submission of evidence that had been gained unlawfully by the police or prosecutors. Since 1961, and particularly during the Rehnquist and Roberts Courts, the rules excluding evidence have steadily diminished. This paper seeks to review the history of the exclusionary rule.

The Criminalization Of Consensual Adult Sex After Lawrence, Richard Broughton

Richard Broughton

Ten years after the Supreme Court’s supposedly momentous decision in Lawrence v. Texas, the case still confounds not merely constitutional law, but the criminal law of sex, as well. This Article seeks to advance the literature on both Lawrence and the criminal law by examining Lawrence’s impact upon sex crimes that involve consensual, private, non-prostitution conduct between adults. It positions Lawrence as a relatively conservative opinion as to sex crimes generally, especially in light of the “Exclusions Paragraph” on page 578 of the Court’s opinion. Still, Lawrence (albeit ambiguously) must protect some form of private, consensual, non-prostitution adult sexuality beyond …

The Criminalization Of Consensual Adult Sex After Lawrence, Richard Broughton

Richard Broughton

Ten years after the Supreme Court’s supposedly momentous decision in Lawrence v. Texas, the case still confounds not merely constitutional law, but the criminal law of sex, as well. This Article seeks to advance the literature on both Lawrence and the criminal law by examining Lawrence’s impact upon sex crimes that involve consensual, private, non-prostitution conduct between adults. It positions Lawrence as a relatively conservative opinion as to sex crimes generally, especially in light of the “Exclusions Paragraph” on page 578 of the Court’s opinion. Still, Lawrence (albeit ambiguously) must protect some form of private, consensual, non-prostitution adult sexuality beyond …

Beyond Paroline: Ensuring Meaningful Remedies For Child Pornography Victims At Home And Abroad, W. Warren H. Binford

W. Warren H. Binford

This article considers how the United States could fulfill its international treaty obligations to support the full restoration of child pornography victims in the aftermath of the recent decision of the United States Supreme Court in Paroline v. United States. The article details how the United States provided leadership historically in creating a skeletal legal framework domestically and internationally to help combat child pornography and restore victims, and highlights how that framework is failing victims on a near-universal basis in an age dominated by technological innovation and globalization. The article proposes the adoption and implementation of effective domestic and international …

"Shut Up. Pay More. This Is What You Voted For." Why You Don't See Me At San Francisco's Hall Of Justice., David D. Butler

David D. Butler

This 2,285 essay combines California's often violent history with European and American high and low culture to explain my decision to leave San Francisco in the 1970's and to study and practice law in other states. At the time, I was platflorm man (operator) on the 30 Stockton electric trolley through South of Market, the Financial District, Chinatown, Pacific Heights, and the Marina. Nevertheless, at the time the Nation of Islam had at least one armed group, the Zebra killers, murdering Whites, often slowly with machetes. I joined the White, Middle-Class, Taxpaying majority in their diaspora to safer places. My …

No Prisoner Left Behind? Enhancing Public Transparency Of Penal Institutions, Andrea Armstrong

Andrea Armstrong

Prisoners suffer life-long debilitating effects of their incarceration, making them a subordinated class of people for life. This article examines how prison conditions facilitate subordination and concludes that enhancing transparency is the first step towards equality. Anti-subordination efforts led to enhanced transparency in schools, a similar but not identical institution. This article argues that federal school transparency measures provide a rudimentary and balanced framework for enhancing prison transparency.

An Anachronism Too Discordant To Be Suffered: A Comparative Study Of Parliamentary And Presidential Approaches To Regulation Of The Death Penalty, Derek R. Verhagen

Derek R VerHagen

It is well-documented that the United States remains the only western democracy to retain the death penalty and finds itself ranked among the world's leading human rights violators in executions per year. However, prior to the Gregg v. Georgia decision in 1976, ending America's first and only moratorium on capital punishment, the U.S. was well in line with the rest of the civilized world in its approach to the death penalty. This Note argues that America's return to the death penalty is based primarily on the differences between classic parliamentary approaches to regulation and that of the American presidential system. …

U.S. Government Counterterrorism Asset Freezes: Regulatory Seizures In A Digital Age Of Terrorism, Adam S. Wallwork

Adam S Wallwork

This Article addresses the question of when, if ever, the Department of the Treasury’s counterterrorism asset freezes against US persons (US citizens, resident aliens, and US-based organizations) violate the Fourth Amendment. It addresses two questions that currently divide the federal courts: (1) whether OFAC blocking orders are seizures subject to the Fourth Amendment and (2) whether the Fourth Amendment’s warrant and probable-cause requirements apply to OFAC counterterrorism blocking orders if these orders are in fact seizures.

My Originalist analysis of OFAC counterterrorism blocking orders draws on evidence of the Framers’ original understanding of “unreasonable . . . seizures,” including the …

Plugging The School-To-Prison Pipeline By Improving Behavior And Protecting Core Judicial Functions, Patrick Metze

Patrick Metze

The consolidation of the Texas Youth Commission (TYC) and the Texas Juvenile Probation Commission (TJPC) into the Texas Juvenile Justice Department (TJJD) in 2011, produced a unified state juvenile justice agency to promote public safety first and to produce positive outcomes for youth, families, and communities second. As Professor Metze’s second paper discussing ways to effect a change in the School-to-Prison Pipeline, he first highlights the progress of TJJD’s use of Positive Behavioral Interventions and Supports (PBIS) in the Texas juvenile correctional context as continued evidence that such techniques, if effective in the correctional setting, will certainly work in the …

The Piranha Is As Deadly As The Shark: A Case For The Limitation On Deceptive Practices In Dna Collection, Brett A. Bauman

Brett A Bauman

Police deception tactics are utilized throughout the United States as a way to catch unsuspecting criminals. Although criticized in many respects, most deceptive police techniques are not only legal, but are actually encouraged. DNA collection and analysis is no exception—techniques are frequently used by law enforcement officers in an attempt to collect a suspect’s genetic specimen in the interest of solving crimes. While law enforcement officers typically have the best interests of society in mind, the current practices employed by officers to collect suspects’ DNA violate the Fourth Amendment. The Fourth Amendment provides protection against unreasonable searches and seizures, and …

Guns, Violence, And Schools: Policies To Prevent And Respond To School Shootings, Mark A. Velez

Mark A. Velez

The United States continues to deal with school shootings. The most recent massacre occurred in 2012 at the Sandy Hook Elementary School in Newtown, Connecticut. Several strategies have been used to try and prevent such tragedies from happening. These strategies have included tough gun laws, gun-free school zones, and updating school policies and infrastructure. However, despite these, and other, strategies, school shootings continue to occur. Unfortunately, when a school shooting occurs, school personnel and children are left helpless until the police arrive or the shooter decides to end the rampage. During this time many lives may be lost. Therefore, it …

Cipa V. State Secrets: How A Few Mistakes Confused Two Important National Security Privileges, Elisa Poteat

Elisa Poteat

No abstract provided.

Guns, Violence, And School Shootings: A Policy Change To Arm Some Teachers And School Personnel, Mark A. Velez

Mark A. Velez

The United States continues to deal with school shootings. The most recent massacre occurred in 2012 at the Sandy Hook Elementary School in Newtown, Connecticut. Several strategies have been used to try and prevent such tragedies from happening. These strategies have included tough gun laws, gun-free school zones, and updating school policies and infrastructure. However, despite these, and other, strategies, school shootings continue to occur. Unfortunately, when a school shooting occurs, school personnel and children are left helpless until the police arrive or the shooter decides to end the rampage. During this time many lives may be lost. Therefore, it …

Livelihood, Ability To Pay, And The Original Meaning Of The Excessive Fines Clause, Nicholas M. Mclean

Nicholas M. McLean

Most modern courts that have been called upon to interpret and apply the Excessive Fines Clause of the Eighth Amendment have concluded that a fine or forfeiture can be unconstitutionally excessive only if it is grossly disproportionate to its associated offense. However, in light of its text, history, and purpose, the Excessive Fines Clause is appropriately understood as encoding both a proportionality principle and a further limiting principle linking financial penalties to the personal circumstances and economic status of the offender. This Article seeks to address a significant and surprising gap in the extant literature by articulating and systematically developing …

Partially Concurrent Sentences, Statutory Interpretation, And Legislative Intent: Amicus Brief Filed In State V. Bryant Wilson (Indiana Supreme Court), Adam Lamparello, Charles Maclean

Adam Lamparello

Indiana Code § 35-50-1-2 states that terms of imprisonment “shall be served concurrently or consecutively.” The Code’s plain language does not authorize courts to impose partially consecutive, blended, or “split sentences. Partially consecutive sentences would impermissibly read into the Code a third sentencing option, thus contradicting Indiana’s well-settled jurisprudence and undermining the goal of reasonable uniformity in sentencing. The decision of the Indiana Court of Appeals should therefore be reversed.

Amicus Brief: State V. Glover (Maine Supreme Judicial Court), Adam Lamparello, Charles Maclean

Adam Lamparello

When law enforcement seeks to obtain a warrantless, pre-arrest DNA sample from an individual, that individual has the right to say “No.” If silence is to become a “badge of guilt,” then the right to silence—under the United States and Maine Constitutions—might become a thing of the past. Allowing jurors to infer consciousness of guilt from a pre-arrest DNA sample violates the Fourth Amendment to the United States and Maine Constitutions.

Closing The Widening Net: The Rights Of Juveniles At Intake, Tamar R. Birckhead

Tamar R Birckhead

Should juveniles have more, fewer, the same or different procedural rights than are accorded to adults? This question, posed by Professor Arnold Loewy for a panel at the 2013 Texas Tech Law Review Symposium on Juveniles and Criminal Law, requires us to examine our goals for the juvenile court system. My primary goal, having practiced in both adult criminal and juvenile delinquency forums for over twenty years, is to ensure that the reach of juvenile court is no wider than necessary, as research indicates that when children are processed through the juvenile court system and adjudicated delinquent, the impact is …

Knives And The Second Amendment, David B. Kopel, Claytom E. Cramer, Joseph P. Olson

David B Kopel

This Article is the first scholarly analysis of knives and the Second Amendment. Under the Supreme Court’s standard in District of Columbia v. Heller, knives are Second Amendment “arms” because they are “typically possessed by law-abiding citizens for lawful purposes,” including self-defense.

There is no knife that is more dangerous than a modern handgun; to the contrary, knives are much less dangerous. Therefore, restrictions on carrying handguns set the upper limit for restrictions on carrying knives.

Prohibitions on carrying knives in general, or of particular knives, are unconstitutional. For example, bans of knives that open in a convenient way (e.g., …