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Full-Text Articles in Law
Criminal Forfeiture Procedure In 2012: An Annual Survey Of Developments In The Case Law, Stefan D. Cassella
Criminal Forfeiture Procedure In 2012: An Annual Survey Of Developments In The Case Law, Stefan D. Cassella
Stefan D Cassella
This is an annual review of the case law regarding asset forfeiture in federal criminal cases. It discusses the permissible scope of a forfeiture order, and then takes the reader through each step in the forfeiture process from seizure and restraint to indictment, trial or plea, sentencing, and the ancillary proceeding which the rights and interests of third parties are resolved.
Death Ineligibility And Habeas Corpus, Lee B. Kovarsky
Death Ineligibility And Habeas Corpus, Lee B. Kovarsky
Lee Kovarsky
I examine the interaction between what I call 'death ineligibility' challenges and the habeas writ. A death ineligibility claim alleges that a criminally-confined capital prisoner belongs to a category of offenders for which the Eighth Amendment forbids execution. By contrast, a 'crime innocence' claim alleges that, colloquially speaking, a capital prisoner 'wasn’t there, and didn’t do it.' In the last eight years, the Supreme Court has identified several new ineligibility categories, including mentally retarded offenders. Configured primarily to address crime innocence and procedural challenges, however, modern habeas law is poorly equipped to accommodate ineligibility claims. Death Ineligibility traces the genesis …
Harmelin's Faulty Originalism, Michael J.Z. Mannheimer
Harmelin's Faulty Originalism, Michael J.Z. Mannheimer
Michael J.Z. Mannheimer
In Harmelin v. Michigan, in 1991, Justice Scalia, writing only for himself and Chief Justice Rehnquist, set forth the claim that the Cruel and Unusual Punishments Clause, as understood in 1791, did not require proportionality in sentencing. Instead, he argued, it was understood at that time as addressing only certain methods of punishment. Twenty-one years later, the plurality opinion in Harmelin remains the foundation for conservative originalist arguments against the notion that the Clause forbids disproportionate punishment. It has continued to be cited by its adherents, Justices Scalia and Thomas, as recently as the last week of the October 2011 …
Cruel And Unusual Federal Punishments, Michael Mannheimer
Cruel And Unusual Federal Punishments, Michael Mannheimer
Michael J.Z. Mannheimer
Virtually all federal defendants who have challenged their sentences as “cruel and unusual punishment” in violation of the Eighth Amendment have failed. This is because the Supreme Court’s jurisprudence on cruel and unusual carceral punishments is extraordinarily deferential to legislative judgments about how harsh prison sentences ought to be for particular crimes. This deferential approach stems largely from concerns of federalism, for all of the Court’s modern cases on the Cruel and Unusual Punishments Clause have addressed state, not federal, sentencing practices. Thus, they have addressed the Eighth Amendment only as incorporated by the Fourteenth. Federal courts accordingly find themselves …