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Articles 1 - 30 of 59
Full-Text Articles in Law
The First Step In Overhauling Criminal Justice? Abolish The Death Penalty, Rachel A. Van Cleave
The First Step In Overhauling Criminal Justice? Abolish The Death Penalty, Rachel A. Van Cleave
Publications
Since the killing of George Floyd by a police officer, many changes to criminal justice have been proposed and some have been enacted. However, none of these reforms will be meaningful unless and until we require the government to dismantle the laws and procedures that implement the death penalty, an inherently biased and horrific practice. The fact that the federal government and twenty-seven states still have the death penalty reveals an attitude that is diametrically counter to the mindset necessary to end mass incarceration.
The Time Is Overdue To Fix The Judicial Confirmation Process, Rachel A. Van Cleave, Sonia Bakshi
The Time Is Overdue To Fix The Judicial Confirmation Process, Rachel A. Van Cleave, Sonia Bakshi
Publications
Politics must not drive the decisions by those who serve as gatekeepers to justice for survivors of sexual violence. The #MeToo Movement has thoroughly exposed the many myths surrounding sexual violence, but as Professor Hill pointed out, many gatekeepers have yet to “get it.”
Sudden, Forced, And Unwanted Kisses In The #Metoo Era: Why A Kiss Is Not “Just A Kiss” Under Italian Sexual Violence Law, Rachel A. Van Cleave
Sudden, Forced, And Unwanted Kisses In The #Metoo Era: Why A Kiss Is Not “Just A Kiss” Under Italian Sexual Violence Law, Rachel A. Van Cleave
Publications
#MeToo reports have revealed a significant number of forced kisses typically by men in positions of authority. Previous scholarship in the US has viewed such instances as to rare or too minor to be worthy of criminal sanctions. Indeed, there are no such reported criminal cases involving adults. However, in Italy, the Supreme Court of Cassazione has upheld sexual violence convictions for such forced kisses. This article analyzes these cases and investigates the types of considerations the Italian Supreme Court includes in its evaluation of these situations. This article also suggests specific aspects of US laws that could benefit from …
End The Death Penalty, Rachel A. Van Cleave
De-Categorizing Child Abuse - Equally Devastating Acts Require Equally Solicitous Statutes Of Limitations, Rosemary La Puma
De-Categorizing Child Abuse - Equally Devastating Acts Require Equally Solicitous Statutes Of Limitations, Rosemary La Puma
Publications
News reports of childhood sexual abuse by Catholic priests initially shocked and subsequently angered the public. Emboldened by the public's reaction toward sexual abusers, survivors attempted to confront their abusers in civil court. Jurisdictions adjudicated these claims if they were brought within two years of reaching the age of majority. Yet, survivors often did not recognize the damage done to them until several years after they reached the age of majority. And by the time they did, the two-year statute of limitations had passed. In the late 1980s and early 1990s, survivors lobbied state legislatures to extend. the time within …
The Best Public Defenders Are Anarchists, Rachel A. Van Cleave, Peter Keane
The Best Public Defenders Are Anarchists, Rachel A. Van Cleave, Peter Keane
Publications
After decades in criminal defense and in legal education, Golden Gate University School of Law Dean Emeritus Peter Keane is retiring. In addition to serving as dean and leading the San Francisco Public Defender's Office, Keane has also taken on leadership roles with the State Bar and with numerous tasks forces and commissions. He sat down recently with Rachel Van Cleave, the current dean of GGU Law, to reflect on his career.
Threaten Sentencing Enhancement, Coerce Plea, (Wash, Rinse,) Repeat: A Cause Of Wrongful Conviction By Guilty Plea, Wes R. Porter
Threaten Sentencing Enhancement, Coerce Plea, (Wash, Rinse,) Repeat: A Cause Of Wrongful Conviction By Guilty Plea, Wes R. Porter
Publications
Our American criminal justice system is too often described as broken. It was not a clean break in a single, isolated location. Instead, our criminal justice system suffers from many, many little nicks, bumps, and bruises at the hands of its keepers. The evolution of sentencing enhancements within our criminal justice system represents the latest nagging, reoccurring injury. In the ultimate Trojan horse to criminal defendants, the Supreme Court sought to protect the individual rights of the accused with its recent decisions on sentencing enhancements. But at the hands of lawmakers, the judiciary, and prosecutors, criminal defendants suffer more. Our …
Book Review: Carol Haber, The Trials Of Laura Fair: Sex, Murder, And Insanity In The Victorian West, Benedetta Faedi Duramy
Book Review: Carol Haber, The Trials Of Laura Fair: Sex, Murder, And Insanity In The Victorian West, Benedetta Faedi Duramy
Publications
During the nineteenth century, the inquisitorial justice system, in which the investigation was typically overseen by a prosecutor or an examining magistrate, and the conduct of the trial was largely in the hands of the court, was replaced by the adversarial justice system. In the adversarial model, both the prosecutor and the defense were responsible for gathering evidence and presenting a narrative of the crime during the trial. Therefore, the courtroom became a sentimental theater in which opposing counsels recreated for the jury the story of the defendant and the events leading to the crime. The trial, therefore, represented the …
Blame Congress, Not Prosecutors, For The Absurdity Of Mandatory Minimums, Wes R. Porter
Blame Congress, Not Prosecutors, For The Absurdity Of Mandatory Minimums, Wes R. Porter
Publications
Contrary to public perception, prosecutors do not "coerce" or "threaten" otherwise innocent people to plead guilty using mandatory minimum sentences. "Mandatory minimums," as they are called, are minimum terms of imprisonment for specific offenses imposed by statute instead of a judge. Judge John Gleeson of the U.S. District Court for the Eastern District of New York joined the chorus of critics in an October 2013 court statement, when he said that "[p]rosecutors routinely threaten ultra-harsh, enhanced mandatory sentences that no one - not even the prosecutors themselves - thinks are appropriate." Of course, some federal prosecutors do act badly - …
Federal Judges Need Competing Information To Rival The Misleading Guidelines At Sentencing, Wes R. Porter
Federal Judges Need Competing Information To Rival The Misleading Guidelines At Sentencing, Wes R. Porter
Publications
Federal district judges are stuck in a bad marriage with the U.S. Sentencing Guidelines after Booker v. Unittd States. While most of the sentencing debate centers around the struggle over judicial discretion and power to control sentencing outcomes, little attention is given to how poorly we inform the sentencing court's discretion. The information provided to the court at sentencing is lacking and outdated. The Booker Court freed district judges from the "mandatory guideline era" (1988-2005), but also required that district judges continue to calculate, "consult," and explain variances from the applicable guideline range. A sentencing court needs better, competing …
Children Aren't Adults, Even When They Kill, Reichi Lee
Children Aren't Adults, Even When They Kill, Reichi Lee
Publications
No abstract provided.
Requiring The State To Justify Supermax Confinement For Mentally Ill Prisoners: A Disability Discrimination Approach, Brittany Glidden, Laura Rovner
Requiring The State To Justify Supermax Confinement For Mentally Ill Prisoners: A Disability Discrimination Approach, Brittany Glidden, Laura Rovner
Publications
The Eighth Amendment has long served as the traditional legal vehicle for challenging prison conditions, including long-term isolation or "supermax" confinement. As described by Hafemeister and George in their article, The Ninth Circle of Hell: An Eighth Amendment Analysis of Imposing Prolonged Supermax Solitary Confinement on Inmates with a Mental Illness, some prisoners with mental illness have prevailed in Eighth Amendment challenges to prolonged isolation. Yet an equal or greater number of these claims have been unsuccessful. This Essay considers why some of these cases fail, and suggests that one reason is that Eighth Amendment jurisprudence does not contain a …
No Change In Sight For Sentencing Guidelines, Wes R. Porter
No Change In Sight For Sentencing Guidelines, Wes R. Porter
Publications
In the post-Booker era, the commission must reinvent itself to provide a useful tool for the courts in determining punishment, explains Wes Reber Porter of Golden Gate University School of Law.
Confrontation Clause Again Before High Court, Robert K. Calhoun
Confrontation Clause Again Before High Court, Robert K. Calhoun
Publications
This past term, the U.S. Supreme Court decided the latest in a series of confrontation clause cases that began in 2004 with Crawford v. Washington, 541 U.S. 36. In Bullcoming v. New Mexico, 11 C.D.O.S. 7706, the court held that the confrontation clause does not permit the government to introduce a forensic lab report in a criminal trial through the in-court testimony of an analyst who did not personally perform or observe the test that formed the basis for the report.
Why Cops Lie, Peter Keane
Why Cops Lie, Peter Keane
Publications
Police officer perjury in court to justify illegal dope searches is commonplace. One of the dirty little not-so-secret secrets of the criminal justice system is undercover narcotics officers intentionally lying under oath. It is a perversion of the American justice system that strikes directly at the rule of law. Yet it is the routine way of doing business in courtrooms everywhere in America.
Ninth Circuit Strikes Out On Hearsay, Peter Keane
Ninth Circuit Strikes Out On Hearsay, Peter Keane
Publications
The recent Ninth Circuit U.S. Court of Appeals opinion, United States v. Barry Bonds , is a murky distortion of an important Federal Rule of Evidence. Quite apart from any celebrity status about a decision regarding the upcoming perjury trial of the former Giants' slugger, the ruling significantly affects the admissibility of evidence in the federal courts in an unfortunate and erroneous way.
The Pendulum In Federal Sentencing Can Also Swing Toward Predictability: A Renewed Role For Binding Plea Agreements Post-Booker, Wes R. Porter
The Pendulum In Federal Sentencing Can Also Swing Toward Predictability: A Renewed Role For Binding Plea Agreements Post-Booker, Wes R. Porter
Publications
This article argues that in addition to the swing toward increased judicial discretion and overall lower sentences, the pendulum also can swing toward predictability and informed decision making for the defendant. The federal sentencing scheme must allow a defendant to pursue, negotiate, and contract for what the defendant believes is a uniform, proportional, and fair sentence. Increased use of binding plea agreements in federal court could complement the progressive developments following Booker and restore some predictability and informed decision making to federal sentencing. However, without significant rule, policy, and perception changes, like those proposed in Part VI of this article, …
Wrongfully Convicted: The Overrepresentation Of The Poor, Susan Rutberg
Wrongfully Convicted: The Overrepresentation Of The Poor, Susan Rutberg
Publications
Professor Susan Rutberg introduced a panel of her students who presented papers, each focused on an individual cause of wrongful convictions and a proposed solution to this identified problem. The panel illustrated how law school students can use the lens of their inexperience to articulate straightforward approaches that might reduce the circumstances that produce wrongful convictions and alleviate some of the hardship such convictions cause.
Wrongfully Incarcerated, Randomly Compensated - How To Fund Wrongful-Conviction Compensation Statutes, Deborah M. Mostaghel
Wrongfully Incarcerated, Randomly Compensated - How To Fund Wrongful-Conviction Compensation Statutes, Deborah M. Mostaghel
Publications
It is sadly true that there are people in this country who are sentenced to prison, and even death, for crimes they did not commit. Some have been exonerated and released, largely as the result of innocence projects that have helped prisoners assemble DNA evidence that shows they were not the perpetrators. Some have been exonerated years after they died in prison. Many others are no doubt never exonerated. For a wrongfully convicted person, exoneration is the end of one road but only the beginning of another. Unbelievably, exonerees starting out on the road back to society find that they …
Abolish Oral Argument?, Myron Moskovitz
Justice Carter’S Role In The Caryl Chessman Cases: Due Process Matters, Susan Rutberg
Justice Carter’S Role In The Caryl Chessman Cases: Due Process Matters, Susan Rutberg
Publications
No abstract provided.
Justice Carter’S Dissent In People V. Gonzales: Protecting Against The “Tyranny Of Totalitarianism”, Rachel A. Van Cleave
Justice Carter’S Dissent In People V. Gonzales: Protecting Against The “Tyranny Of Totalitarianism”, Rachel A. Van Cleave
Publications
People v. Gonzales involved an issue that continues to divide lawyers, judges, scholars, politicians, as well as the general public: how best to protect individuals from law enforcement conduct that violates constitutional protections? This question is particularly controversial in the context of a criminal case, since the exclusion of illegally obtained evidence often results in the alleged criminal going free. In Gonzales, the California Supreme Court was asked to adopt the exclusionary rule as a remedy for violations of constitutional rights. A majority of California Supreme Court justices answered this in the negative. Justice Carter disagreed, and his analysis provided …
Justice Carter’S Dissent In People V. Crooker: An Early Step Towards Miranda Warnings And The Expansion Of The Fifth Amendment To Pre-Trial Confessions, Helen Y. Chang
Publications
By the middle of the 20th century, police interrogation of criminal suspects had developed into a fine art designed to extract confessions. The use of the “third degree,” otherwise known as the infliction of physical or mental suffering, was not uncommon. “[T]he most frequently utilized interrogation techniques have involved mental and psychological stratagems—trickery, deceit, deception, cajolery, subterfuge, chicanery, wheedling, false pretenses of sympathy, and various other artifices and ploys.” As the United States Supreme Court noted in its famous Miranda v. Arizona decision, this type of police interrogation involved “inherent compulsion,” was “inherently coercive,” “exact[ed] a heavy toll on individual …
The International War Crimes (Tribunal) Act, 1973 Of Bangladesh, Zakia Afrin
The International War Crimes (Tribunal) Act, 1973 Of Bangladesh, Zakia Afrin
Publications
Bangladesh earned her independence from Pakistan in 1971 after a bloody war that continued for nine months. By December 16 of 1971, the day Bangladesh declared victory, an estimated 30 million people died and 200,000 women reported sexual violence by the Pakistani Army and their Bengali accomplices. Known as one of the worst genocide in history, the systematic killing of Bengalis included a chilling attempt to exterminate the intellectuals from within Bangladeshi society. A published report claims that by 19 April, 1975 individuals were arrested for war crimes and 752 were convicted. After the assassination of the country’s first Prime …
From Violence Against Women To Women's Violence In Haiti, Benedetta Faedi Duramy
From Violence Against Women To Women's Violence In Haiti, Benedetta Faedi Duramy
Publications
Much of the current scholarship, as well as international policy studies focusing on civil conflicts and armed violence, has primarily construed women as victims and men as perpetrators of violence. Although this prevalent interpretation certainly reflects conventional wisdom and tells part of a true war story, the remainder, which has been very much less publicized and addressed, also perceives women as participants in violence and men occasionally as victims. This Article joins the chorus of scholars that have only recently begun to highlight the flaws of this common belief and conversely, describe female participation in conflict and armed violence, often …
Field Work, Myron Moskovitz
Rape, Blue Jeans, And Judicial Developments In Italy, Benedetta Faedi Duramy
Rape, Blue Jeans, And Judicial Developments In Italy, Benedetta Faedi Duramy
Publications
On June 10, 2008, the Supreme Court of Italy (Corte di Cassazione) affirmed a decision made by the Court of Appeal of Venezia condemning a defendant to one year of imprisonment for having repeatedly sexually assaulted a sixteen-year-old girl. The appellant, who was in a relationship with the mother of the victim and cohabited with them at the time of the aggression, argued that the girl had slanderously misrepresented the facts. Particularly, the defendant claimed that since the plaintiff was wearing a pair of tight blue jeans at the time of the alleged episode of sexual violence, it is not …
Everyone Deserves Defense, Peter Keane
Everyone Deserves Defense, Peter Keane
Publications
In his decades as a public defender, Peter Keane represented murderers and other criminals as skillfully as he could – even when he knew they were guilty . Keane believes every one, no matter what they’ve done, deserves to have somebody on their side.
Renaissance Redux? Chastity And Punishment In Italian Rape Law, Rachel A. Van Cleave
Renaissance Redux? Chastity And Punishment In Italian Rape Law, Rachel A. Van Cleave
Publications
This essay examines an Italian sexual assault case that received significant media attention. The Corte d'appello of Cagliari concluded that the defendant was not entitled to a reduced sentence when he was convicted of sexually assaulting his fourteen-year-old stepdaughter. On review, the Third Section of Italy's Corte diCassazione held that the lower court's refusal was erroneous. Cassazione faulted the appellate court for failing to consider that the victim had already engaged in sexual activity with others. This case illustrates how changing rape laws on the books does not always bring about immediate change in attitudes. Indeed, notions of chastity and …
Mapping Proportionality Review: Still A "Road To Nowhere", Rachel A. Van Cleave
Mapping Proportionality Review: Still A "Road To Nowhere", Rachel A. Van Cleave
Publications
This article examines how a majority of the Supreme Court went out of its way to vacate a punitive damages award in Philip Morris and further reinforced the inconsistency with which it applies the principle of proportionality. When it comes to punitive damages awards, a majority of Justices continue to convey distrust of juries and of trial and appellate court judges who review these awards. However, when it comes to terms of imprisonment, the Court has eschewed substantive review under the Eighth Amendment while insisting that the Sixth Amendment requires that all facts supporting an increase in a sentence be …