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The Mandatory Victims Restitution Act Is Unconstitutional. Will The Courts Say So After Southern Union V. United States?, William M. Acker Jr.

William M. Acker Jr.

The Mandatory Victims Restitution Act is Unconstitutional. See United States v. Southern Union.

The Mandatory Victims Restitution Act Is Unconstitutional. Will The Courts Say So After Southern Union V. United States?, William M. Acker Jr.

William M. Acker Jr.

The Mandatory Victims Restitution Act is Unconstitutional. See Southern Union v. United States.

The Mandatory Victims Restitution Act Is Unconstitutional. Will The Courts Say So After Southern Union V. United States?, William M. Acker Jr.

William M. Acker Jr.

The Mandatory Victims Restitution Act is Unconstitutional. See Southern Union v. United States.

The Mandatory Victims Restitution Act Is Unconstitutional. Will The Courts Say So After Southern Union V. United States?, William M. Acker Jr.

William M. Acker Jr.

The Mandatory Victims Restitution Act is Unconstitutional. See United States v. Southern Union.

The Mandatory Victims Restitution Act Is Unconstitutional. Will The Courts Say So After Southern Union V. United States?, William M. Acker Jr.

William M. Acker Jr.

The Mandatory Victims Restitution Act is Unconstitutional. See United States v. Southern Union.

The Mandatory Victims Restitution Act Is Unconstitutional. Will The Courts Say So After Southern Union V. United States?, William M. Acker Jr.

William M. Acker Jr.

The Mandatory Victims Restitution Act is Unconstitutional. See Southern Union v. United States.

The Mandatory Victims Restitution Act Is Unconstitutional. Will The Courts Say So After Southern Union V. United States?, William M. Acker Jr.

William M. Acker Jr.

The Mandatory Victims Restitution Act is Unconstitutional. See Southern Union v. United States.

The Mandatory Victims Restitution Act Is Unconstitutional. Will The Courts Say So After Southern Union V. United States?, William M. Acker Jr.

William M. Acker Jr.

The Mandatory Victims Restitution Act is Unconstitutional. See Southern Union v. United States.

Hate Speech And Persecution: A Contextual Approach, Gregory S. Gordon

Gregory S. Gordon

Scholarly work on atrocity-speech law has focused almost exclusively on incitement to genocide. But case law has established liability for a different speech offense: persecution as a crime against humanity (CAH). The lack of scholarship regarding this crime is puzzling given a split between the International Criminal Tribunals for Rwanda (ICTR) and Yugoslavia (ICTY) on the issue of whether hate speech can serve as an actus reus for CAH-persecution. In the 2000 Ruggiu and 2003 Nahimana judgments, separate ICTR Trial Chambers found that hate speech radio broadcasts not calling for violence deprived the target ethnic group of fundamental rights and …

“An Existential Moment Of Moral Perception”: Declarations Of Life And The Capital Jury Re-Imagined, Rebecca T. Engel

Rebecca T Engel

In many ways, death penalty jurisprudence, as well as its social status, have evolved at a rapid rate recently in the United States. This has occurred as the Supreme Court has twice declared capital punishment to be specifically unconstitutional in the last decade, in Atkins v. Virginia, 536 U.S. 304 (2002) and Roper v. Simmons, 543 U.S. 551 (2005), and as five states within four years have repealed it from within their criminal justice systems. (New York, New Jersey, Illinois, New Mexico, and Connecticut.) However, in other ways, the system has continued to lag, hardly moving from its difficult reinstatement …

Kids, Counsel And Costs: An Empirical Study Of Indigent Defense Services In The Los Angeles Juvenile Delinquency Courts, Cyn Yamashiro

cyn yamashiro

In the landmark case In re Gault, the Supreme Court guaranteed juveniles virtually all of the criminal due process rights previously granted to adults. Arguably the most vital of those rights is the right to competent counsel. Scholars have studied how systems provide legal counsel and have questioned the use of certain models to provide defense services. Los Angeles County utilizes two distinct models for the provision of defense services: a contract-panel attorney model and a public defender office. This study looks at data from over 2,800 juvenile court case files from the Los Angeles juvenile courts and asks the …

Identity Crises And Incarceration: Preventing Prison Rape By Channeling Expressions Of Masculinity, Daniel A. Nolan Iv

Daniel A Nolan IV

Prison rape is a well-known and widely publicized problem in the American prison system. Even with this high degree of visibility, the problem persists despite correctional officials’ best efforts. These efforts to combat prison rape have focused almost exclusively on preventing the physical act from occurring. While it might seem like a straightforward or obvious approach, this type of strategy does nothing to address why rape is so common among prison inmates. Solutions that merely prevent rape from occurring, without addressing the underlying cause, do nothing to change a cultural environment that rewards sexual assault.

This Article argues that the …

The Mandatory Meaning Of Miller, William W. Berry Iii

William W Berry III

In June 2012, the United States Supreme Court held in Miller v. Alabama that the imposition of mandatory life-without-parole sentences on juveniles violated the Eighth Amendment’s ban on “cruel and unusual” punishment. This case continued the Supreme Court’s slow but steady expansion of the scope of the Eighth Amendment over the past decade. In light of the Court’s decision in Miller to preclude mandatory sentences of life without parole for juveniles, this article explores the possibility of further expansion of the Eighth Amendment to proscribe other kinds of mandatory sentences. Applying the approach of the Court in Miller to other …

Notification And Risk Management For Victims Of Domestic Violence, Jaime K. Dahlstedt

Jaime K. Dahlstedt

Technological advances have made possible the real-time enforcement of temporary and contested protection orders issued on behalf of victims of domestic abuse, particularly through global positioning satellite (GPS) monitoring of individuals who have been found to have committed domestic violence offenses and against whom stay away orders have been entered. Notwithstanding this capability, however, courts rarely impose GPS monitoring requirements alongside the safety provisions routinely imposed in domestic abuse cases.

This Article examines and critiques this prevailing practice. This Article argues that the procedural, substantive and logistical objections to GPS monitoring do not sufficiently justify the systemic failure to impose …

Hold On: The Remarkably Resilient, Constitutionally Dubious "48-Hour Hold", Steven Mulroy

Steven Mulroy

This article discusses the surprisingly widespread, little-known practice of “48-hour holds,” where police detain a suspect without charge or access to bail for up to 48 hours to continue their investigation; at the end of 48 hours, they either charge or release him. Although it has not been discussed in the scholarly literature, the practice has occurred in a number of large local jurisdictions over the past few decades, and continues today in some of them. The “holds” often take place, admittedly or tacitly, without the probable cause needed to charge a defendant, and thus in violation of the Fourth …

Execution By Accident: Evidentiary And Constitutional Problems With The "Childhood Onset" Requirement In Atkins Claims, Steven Mulroy

Steven Mulroy

The article discusses claims by capital defendants asserting that they are mentally retarded (MR) and thus cannot be executed under the 2002 Supreme Court holding in Atkins v. Virginia. Courts hearing such claims require proof that any intellectual deficits first occurred during childhood. This “childhood onset” prong is problematic for practical and theoretical reasons. As a practical matter, courts often improperly: (a) expect (rarely available) IQ test results dating from childhood; (b) dismiss MR proof if the defendant has minimal day-to-day competence, despite the medical consensus that MR persons can drive, cook, etc.; and (c) reject Atkins claims because the …

Disparate Protections For American Human Trafficking Victims, Amanda J. Peters

Amanda J Peters

The United States enacted the Trafficking Victims Protection Act (TVPA) in 2000. It was the first piece of legislation to address human trafficking. Since that time, the United States has monitored anti-trafficking efforts worldwide. Nations that fail to meet minimum standards set by the United States risk losing non-humanitarian financial aid from the federal government, the International Monetary Fund, and global banks. Yet, these minimum standards are not met by the United States when it comes to protecting American trafficking victims.

According to the TVPA, governments shall attempt to prevent human trafficking, punish traffickers, and protect people who have been …

The Racial Injustice Of The War On Drugs: The Sentencing Laws And Police Practices Responsible For The Injustice And A Policy Prescription For A New Way Forward, Brad R. Schlesinger

Brad R Schlesinger

The War on Drugs is a discriminatory policy that results in blacks being overrepresented as those arrested and imprisoned for drug crimes – creating incalculable damages to black communities and families. The culprits are sentencing laws and law enforcement tactics that cannot be considered race-neutral as these policies overwhelmingly affect blacks. While attempts to ameliorate these disparities through sentencing reform has had mild successes, these prescriptions are limited, failing to address the underlying problem: the way the drug war is policed. I contend that legalizing and regulating drugs is necessary to reverse the injustice and blatant discrimination of the drug …

The Racial Injustice Of The War On Drugs: The Sentencing Laws And Police Practices Responsible For The Injustice And A Policy Prescription For A New Way Forward, Brad R. Schlesinger

Brad R Schlesinger

The War on Drugs is a discriminatory policy that results in blacks being overrepresented as those arrested and imprisoned for drug crimes – creating incalculable damages to black communities and families. The culprits are sentencing laws and law enforcement tactics that cannot be considered race-neutral as these policies overwhelmingly affect blacks. While attempts to ameliorate these disparities through sentencing reform has had mild successes, these prescriptions are limited, failing to address the underlying problem: the way the drug war is policed. I contend that legalizing and regulating drugs is necessary to reverse the injustice and blatant discrimination of the drug …

The Racial Injustice Of The War On Drugs: The Sentencing Laws And Police Practices Responsible For The Injustice And A Policy Prescription For A New Way Forward, Brad R. Schlesinger

Brad R Schlesinger

The War on Drugs is a discriminatory policy that results in blacks being overrepresented as those arrested and imprisoned for drug crimes – creating incalculable damages to black communities and families. The culprits are sentencing laws and law enforcement tactics that cannot be considered race-neutral as these policies overwhelmingly affect blacks. While attempts to ameliorate these disparities through sentencing reform has had mild successes, these prescriptions are limited, failing to address the underlying problem: the way the drug war is policed. I contend that legalizing and regulating drugs is necessary to reverse the injustice and blatant discrimination of the drug …

Contextual Expectations Of Privacy, Andrew Selbst

Andrew Selbst

Fourth Amendment search jurisprudence is nominally based on a “reasonable expectation of privacy,” but actual doctrine is detached from society’s conception of privacy. Courts rely on various binary distinctions: Is a piece of information secret or not? Was the observed conduct inside or outside? While often convenient, none of these binary distinctions can adequately capture the complicated range of ideas encompassed by “privacy.” Over the last decade, privacy theorists have begun to understand that a consideration of context is essential to a full understanding of privacy. Helen Nissenbaum’s theory of contextual integrity, which characterizes a right to privacy as the …

Presumed Guilty, Terrence Cain

Terrence Cain

It would probably surprise the average American that prosecutors need only prove guilt beyond a reasonable doubt sometimes. Although the Due Process Clauses of the Constitution require that the government prove each element of an alleged criminal offense beyond a reasonable doubt, the use of statutory presumptions has relieved the government of this responsibility, and in some cases, has even shifted the burden to the defendant to disprove the presumption. Likewise, the Sixth Amendment grants a criminal defendant the right to have the jury and the jury alone determine whether the government has met its burden and ultimately whether the …

Medical Marijuana Lawyers: Outlaws Or Crusaders?, Sam Kamin, Eli Wald

Sam Kamin

While marijuana remains a prohibited substance under federal law – one whose manufacture, possession, or distribution is a serious felony – 17 states plus the District of Columbia have legalized the drug for certain medical uses. This tension between state and federal law creates confusion for all of those who work in the emerging medical marijuana (“MMJ”) industry. As marijuana moves from the shadows to the storefronts, it becomes a business. Businesses have employees, shareholders and leases; they must comply with state and local zoning ordinances and pay their taxes. In most businesses, proprietors turn to lawyers for help with …

The Mandatory Victims Restitution Act Is Unconstitutional. Will The Courts Say So After Southern Union V. United States?, William M. Acker Jr.

William M. Acker Jr.

The Mandatory Victims Restitution Act is Unconstitutional. See Southern Union v. United States.

The Mandatory Victims Restitution Act Is Unconstitutional. Will The Courts Say So After Southern Union V. United States?, William M. Acker Jr.

William M. Acker Jr.

The Mandatory Victims Restitution Act is Unconstitutional. See Southern Union v. United States.

The Mandatory Victims Restitution Act Is Unconstitutional. Will The Courts Say So After Southern Union V. United States?, William M. Acker Jr.

William M. Acker Jr.

The Mandatory Victims Restitution Act is Unconstitutional. See Southern Union v. United States.

Demons: Be Gone, David D. Butler

David D. Butler

This essay argues that though contrary to Muslim doctrine, the secret disposal of Osama bin Laden at sea was necessary to prevent any known grave from becoming a pilgrimage site for Muslim jihadists. The essay compares the secret burial of bin Ladin, to that of Adolph Hitler and the recent reburial of Rudolph Hesse, also at sea, and concludes all three are reasonable steps to forestall further terrorist activity.

Death And Rehabilitation, Meghan J. Ryan

Meghan J. Ryan

While rehabilitation is reemerging as an important penological goal, the Supreme Court is eroding the long-revered divide between capital and non-capital sentences. This raises the question of whether and how rehabilitation applies in the capital context. Courts and scholars have long concluded that it does not—that death is completely irrelevant to rehabilitation. Yet, historically, the death penalty in this country has been imposed in large part to induce the rehabilitation of offenders’ characters. Additionally, there are tales of the worst offenders transforming their characters when they are facing death, and several legal doctrines are based on the idea that death …

Burdens Of Proof And Qualified Immunity, Kenneth J. Duvall

Kenneth J Duvall

Despite the need to strike a proper balance between effective § 1983 suits to deter government misconduct and corresponding, robust defenses to deter frivolous suits, courts across the nation cannot agree on the fundamental questions of what the proper defenses to § 1983 actions are or how to allocate the burdens of proof in such litigation. This Article would remedy this situation, proposing an approach that offers both a single defense to § 1983 claims and a uniform allocation of the burdens of proof when that defense is raised. In Part I, this Article briefly explains the burdens of proof, …

The Contradictory Stance On Jury Nullification, Kenneth J. Duvall

Kenneth J Duvall

Arguments about jury nullification in both courts and academia proceed under the assumption that either proponents and opponents of nullification could decisively carry the day. But as current Supreme Court law stands, nullification is at once prohibited and protected. This Article shines a light on the uneasy, confusing compromise in the doctrine, and finds that the two ways out of the dilemma—fully embracing nullification, or rejecting it—are equally taboo to the American legal mind. In Part I, this Article briefly explains the contested history of nullification. In Part II, it examines modern courts’ intermittent recognition of nullification. Part III then …