Law Commons^™

Preventive Detention And The Judicial Prediction Of Dangerousness For Juveniles: A Natural Experiment, Jeffery Fagan, Martin Guggenheim

Faculty Scholarship

Since 1970, legislatures have increasingly relied on preventive detention – detention before trial ordered solely to prevent an accused from committing crime during the pretrial period – as an instrument of social control. Prior to this period, detention before trial was usually ordered only to assure an accused's presence at trial or to ensure the integrity of the trial process by preventing an accused from tampering with witnesses. Today, the majority of states and the federal system have changed their laws to allow judges to detain arrestees who pose a risk to society if released during the pretrial period. Half …

Mature Adjudication: Interpretive Choice In Recent Death Penalty Cases, Bernard Harcourt

Faculty Scholarship

Capital punishment presents a "hard" case for adjudication. It provokes sharp conflict between competing constitutional interpretations and invariably raises questions of judicial bias. This is particularly true in the new Republic of South Africa, where the framers of the interim constitution deliberately were silent regarding the legality of the death penalty. The tension is of equivalent force in the United States, where recent expressions of core constitutional rights have raised potentially irreconcilable conflicts in the application of capital punishment.

Two recent death penalty decisions – the South African Constitutional Court opinions in State v. Makwanyane and the United States Supreme …