Law Commons^™

When The Federal Death Penalty Is "Cruel And Unusual", Michael J.Z. Mannheimer

ExpressO

Recent changes to the way the U.S. Department of Justice decides whether to pursue capital charges have made it more likely that the federal death penalty will be sought in cases in which the criminal conduct occurred within States that do not authorize capital punishment for any crime. As a result, since 2002, five people have been sentenced to death in federal court for conduct that occurred in States that do not authorize the death penalty. This state of affairs is in serious tension with the Eighth Amendment’s proscription against “cruel and unusual punishments.” A complete understanding of the Bill …

Reconceptualizing Due Process In Criminal Justice: Contributions From Law And Social Science, Christopher Slobogin

ExpressO

This article challenges the accepted wisdom, at least since the Supreme Court’s decision in Gault, that procedures in juvenile delinquency court should mimic the adult criminal process. The legal basis for this challenge is Gault itself, as well as the other Supreme Court cases that triggered the juvenile justice revolution of the past decades, for all of these cases relied on the due process clause, not the provisions of the Constitution that form the foundation for adult criminal procedure. That means that the central goal in juvenile justice is fundamental fairness, which does not have to be congruent with the …

The Reasonableness Of Probable Cause, Craig S. Lerner

George Mason University School of Law Working Papers Series

Probable cause is generally cast in judicial opinions and the scholarly literature as a fixed probability of criminal activity. In the weeks before the September 11 attacks, FBI headquarters, applying such an unbending standard, rejected a warrant application to search Zacarias Moussaoui’s laptop computer. This article, which begins with an analysis of the Moussaoui episode, argues that the probable cause standard should be calibrated to the gravity of the investigated offense and the intrusiveness of a proposed search. Tracing the evolution of probable cause from the common law through its American development, the article argues that the Supreme Court’s current …

Deterring Roper’S Juveniles: Why Immature Criminal Youth Require The Death Penalty More Than Adults – A Law & Economics Approach, Moin A. Yahya

ExpressO

In Roper v. Simmons, the United States Supreme Court declared the death penalty for juveniles unconstitutional. It relied on three reasons, one of which concerns this article, namely the theory that juveniles are less culpable and deterrable than adults. The Court relied on the American Medical Association’s amicus brief which purported to show scientifically that juveniles had less developed brains than adults. The Court characterized juveniles as being risk-lovers who highly preferred the present over the future, who loved gains no matter how risky but did not care for losses, and who could not engage in proper cost-benefit analysis, because …

Shifts In Policy And Power: Calculating The Consequences Of Increased Prosecutorial Power And Reduced Judicial Authority In Post 9/11 America, Chris Mcneil

ExpressO

Among many responses to the attacks of September 11, 2001, Congress and the states have shifted to the executive branch certain powers once held by the judicial branch. This article considers the impact of transferring judicial powers to prosecutorial officers, and compares the consequent increased powers of the prosecutor with those powers traditionally held by prosecutors in Japanese criminal courts. It considers the impact of removing from public view and judicial oversight many prosecutorial functions, drawing comparisons between the largely opaque Japanese prosecutorial roles and those roles now assumed in immigration and anti-terrorism laws, noting the need for safeguards not …

Summary Of Hosier V. State, 121 Nev. Adv. Op. 41, Robert Henriksen

Nevada Supreme Court Summaries

This case is an original proper person petition for extraordinary relief, challenging the validity of Hosier’s 1990 judgment for conviction citing to Article 6, Section 4 of the Nevada Constitution.

Negotiating Sex, Michelle J. Anderson

Working Paper Series

“Negotiating Sex” is a response to the two major proposals for rape law reform in legal scholarship today, as well as a proposal for a third way. Susan Estrich and Donald Dripps argue that sexual penetration should be legal unless the victim expresses her non-consent, a proposal I call the “No Model.” Stephen Schulhofer argues that sexual penetration should be illegal unless the defendant obtains affirmative consent for penetration through the victim’s words or conduct, a proposal I call the “Yes Model.” Under this model, according to Schulhofer, if a woman does not say “no,” and “her silence is combined …

Summary Of Gordon V. State, 121 Nev. Adv. Op. 51, Bryce C. Loveland

Nevada Supreme Court Summaries

In this case, the Court considered two issues related to DUI charges against appellant. First, whether a jury may return a general guilty verdict based upon several legally sufficient theories of driving under the influence if at least one theory had sufficient evidentiary support. Second, whether the appellant was prejudiced by the State’s failure to gather evidence during its investigation. After a review of the evidence presented at trial, the Court concluded that a jury may return a general guilty verdict even when only one of several theories had sufficient support, and that the appellant here was not prejudiced by …

Summary Of Bellon V. State, 121 Nev. Adv. Op. 45, 117 P.3d 176, Wayne Klomp

Nevada Supreme Court Summaries

No abstract provided.

Home As A Legal Concept, Benjamin Barros

ExpressO

This article, which is the first comprehensive discussion of the American legal concept of home, makes two major contributions. First, the article systematically examines how homes are treated more favorably than other types of property in a wide range of legal contexts, including criminal law and procedure, torts, privacy, landlord-tenant, debtor-creditor, family law, and income taxation. Second, the article considers the normative issue of whether this favorable treatment is justified. The article draws from material on the psychological concept of home and the cultural history of home throughout this analysis, providing insight into the interests at stake in various legal …

Partial Ban On Plea Bargains, Oren Gazal

Law & Economics Working Papers Archive: 2003-2009

The influence of the plea bargaining system on innocent defendants is fiercely debated. Many scholars call for a ban on plea bargaining, arguing that the practice coerces innocent defendants to plead guilty. Proponents of plea bargaining respond that even an innocent defendant is better off when he choose to plea bargain in order to assure a lenient result, if he concludes that the risk of wrongful trial conviction is too high. They claim that since plea bargaining is only an option, it cannot harm the defendant whether he is guilty or innocent. This paper argues that the both supporters and …

Mental Disorders And The Law, Richard Redding

Working Paper Series

This chapter provides an introduction to the major classes of mental disorder and the ways in which they are salient to selected aspects of American criminal and civil law, focusing particularly on criminal law issues.

Summary Of Whisler V. State, 121 Nev. Adv. Op. 40, Jared R. Gibb

Nevada Supreme Court Summaries

The defendant, Douglas Whisler, appealed his conviction for driving while under the influence of controlled substances or chemicals.

The Medieval Blood Sanction And The Divine Beneficence Of Pain: 1100 - 1450, Trisha Olson

ExpressO

No abstract provided.

Discretion And Criminal Law: The Good, The Bad, And The Mundane, George C. Thomas Iii

Rutgers Law School (Newark) Faculty Papers

Most academic papers condemn discretion in the enforcement and prosecution of crime. This essay argues that discretion should be understood to come in three varieties: good discretion, which is beneficial; bad discretion, which is typified by acts motivated by race, sex, or class considerations; and mundane discretion, which is value-neutral. The decision to pursue a drunken driver rather than a speeder, for example, is a good use of discretion while the decision to pursue one speeder rather than another based on race is bad discretion. Most motives that prompt acts of discretion, however, are value-neutral or what I call “mundane” …

Time Travel, Hovercrafts, And The Framers: James Madison Sees The Future And Rewrites The Fourth Amendment, George C. Thomas Iii

Rutgers Law School (Newark) Faculty Papers

The Framers could not have contemplated the interpretational problems that cloud the Fourth Amendment because police, in the modern sense, were unknown to the Framers. Also unknown to the Framers, of course, were wiretaps, drug interdiction searches, thermal imagining, helicopters, and blood tests. We can infer from the history surrounding the Fourth Amendment what the Framers hoped it would accomplish in their time. What if the Framers could have seen the future and known the kind of police techniques that are being used today? What kind of Fourth Amendment would they have written with that knowledge? This article seeks to …

Broadening The Holistic Mindset: Incorporating Collateral Consequences And Reentry Into Criminal Defense Lawyering, Michael Pinard

Faculty Scholarship

In this article, Professor Michael Pinard highlights the holistic model of criminal defense representation, which seeks to address the myriad issues that often lead to the client’s involvement with the criminal justice system with the overarching goal of providing a comprehensive solution to those underlying factors. While lauding these developments, however, Professor Pinard argues that the holistic model has largely overlooked two facets of the criminal justice system that impact greatly the client’s life once the formal representation has concluded: the collateral consequences of criminal convictions and reentry. Professor Pinard explores the emerging attention devoted to these two components, but …

The Invisible Pillar Of Gideon, Adam M. Gershowitz

Indiana Law Journal

In 1996, the State of South Carolina charged Larry McVay with common-law robbery. McVay, who was employed part-time and took home less than $160 per week after taxes, claimed that after paying his basic living expenses he had no money left with which to hire an attorney. A South Carolina court disagreed and denied McVay's requestfor appointed counsel. ' Seven years later, Scott Peterson was arrested for the murder of his wife and unborn child in California. Although Peterson owned a home, drove an expensive SUV, and was carrying $10,000 in cash when he was captured, he claimed to be …

Determining When Two Offenses Are The Same Under Indiana's Criminal Rule 4, Howard W. Anderson Iii

Indiana Law Journal

No abstract provided.

Reliability Matters: Reassociating Bagley Materality, Strickland Prejudice, And Cumulative Harmless Error, John H. Blume, Christopher W. Seeds

Cornell Law Faculty Publications

Most commonly invoked after conviction and direct appeal, when a defendant may claim that his lawyer was ineffective or that the government failed to disclose exculpatory information, the Brady doctrine, which governs the prosecutor’s duty to disclose favorable evidence to the defense, and the Strickland doctrine, which monitors defense counsel’s duty to represent the client effectively, have developed into the principal safeguards of fair trials, fundamental to the protection of defendants’ constitutional rights and arguably defendants’ strongest insurance of a reliable verdict. But the doctrines do not sufficiently protect these core values.

The doctrines, despite their common due process heritage …

Form Over Substance? Qualified Immunity In Groh V. Ramirez, Lenard F. Harrelson Jr.

Mercer Law Review

In Groh v. Ramirez, the United States Supreme Court held in a 5-4 decision that a search warrant may be so facially defective that the executing officers cannot reasonably presume it to be valid. The Court reasoned that the warrant deficiency in this case, revolving around the particularity requirement, flows directly from the text of the Fourth Amendment, and thus, no reasonable officer could believe a warrant that obviously did not comply with this standard was valid. The Court proceeded to deny the executing officer qualified immunity by holding that reliance upon this facially defective warrant was objectively unreasonable. …

The Role Of The Federal Sentencing Guidelines In The Wake Of United States V. Booker And United States V. Fanfan, Rosemary T. Cakmis

Mercer Law Review

The year 2004 began much like previous years, at least when it came to decisions from the Eleventh Circuit Court of Appeals interpreting the United States Sentencing Guidelines ("U.S.S.G." or "federal sentencing guidelines" or "guidelines"). In less than one year, however, the federal sentencing guidelines and related Eleventh Circuit decisions took on a fascinating new dimension in light of 2004-2005 United States Supreme Court jurisprudence. This jurisprudence culminated with the January 12, 2005 Supreme Court decision in United States v. Booker, which was consolidated with United States v. Fanfan ("Booker/Fanfan"). Therein, the Supreme Court rejected the Eleventh …

An Honest Approach To Plea Bargaining, Steven P. Grossman

All Faculty Scholarship

In this Article, the author argues that differential sentencing of criminal defendants who plead guilty and those who go to trial is, primarily, a punishment for the defendant exercising the right to trial. The proposed solution requires an analysis of the differential sentencing motivation in light of the benefit to society and the drawbacks inherent in the plea bargaining system.

The Lessons Of People V. Moscat: Confronting Judicial Bias In Domestic Violence Cases Interpreting Crawford V. Washington, David Jaros

All Faculty Scholarship

Crawford v. Washington was a groundbreaking decision that radically redefined the scope of the Confrontation Clause. Nowhere has the impact of Crawford and the debate over its meaning been stronger than in the context of domestic violence prosecutions. The particular circumstances that surround domestic violence cases 911 calls that record cries for help and accusations, excited utterances made to responding police officers, and the persistent reluctance of complaining witnesses to cooperate with prosecutors -- combine to make the introduction of "out-of-comment statements" a critical component of many domestic violence prosecutions. Because domestic violence cases are subject to a unique set …

Uncertain Waters: Tennard V. Dretke Provides Swells Of Protection For The Mentally Deficient But May Cause Rising Tides Of Frivolous Claims, Kristin L. Starnes

Mercer Law Review

Continuing to address the morality and constitutionality of executing mentally deficient offenders, the United States Supreme Court in Tennard v. Dretke held that the Texas jury instructions used during the sentencing phase violated the Eighth Amendment. The jury instructions were unconstitutional because they did not provide sentencers with an adequate vehicle for assessing the defendant's mitigating evidence of low Intelligence Quotient. This case has broad implications for jury instructions in capital cases across the nation. It also raises concerns that valid claims by deserving defendants will be lost in a sea of frivolous claims and unidentified intelligence tests.

To Serve And Protect: Thornton V. United States And The Newly Anemic Fourth Amendment, Jason Lewis

Mercer Law Review

In Thornton v. United States, the United States Supreme Court further weakened the protection afforded by the Fourth Amendment by holding that an officer may search the passenger compartment of a vehicle incident to arrest even when the suspect is first approached after exiting the vehicle. Under the guise of providing protection to police officers, this decision greatly expands the power of an arresting officer to search the private property of the arrestee and creates uncertainty on what constitutional limits apply to searches incident to arrest outside the home.