Law Commons^™

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 …

Reforming Surveillance Law: The Swiss Model, Susan Freiwald, Sylvain Metille

Susan Freiwald

Reforming Surveillance Law: The Swiss Model

Susan Freiwald & Sylvain Métille

As implemented over the past twenty-six years, the Electronic Communications Privacy Act (ECPA), which regulates electronic surveillance by law enforcement agents, has become incomplete, confusing, and ineffective. In contrast, a new Swiss law (CrimPC) regulates law enforcement surveillance in a more comprehensive, uniform, and effective manner. This article compares the two approaches and argues that recent proposals to reform EPCA in a piecemeal fashion will not suffice. Instead, the Swiss CrimPC law presents a model for more fundamental reform of U.S. law.

This article is the first to analyze …

Bringing Down A Legend: How Pennsylvania’S Investigating Grand Jury Ended Joe Paterno’S Career, Brian Gallini

Brian Gallini

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.

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.

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 …

Drugs, Dignity And Danger: Human Dignity As A Constitutional Constraint To Limit Overcriminalization, Michal Buchhandler-Raphael

Michal Buchhandler-Raphael

The American criminal justice system is under tremendous pressures, increasingly collapsing under its heavy weight, thus requiring inevitable change. One notable feature responsible for this broken system is over-criminalization: the scope of criminal law is constantly expanding, making individuals liable to conviction and punishment for an ever-wider range of behaviors. One area where over-criminalization is most notable concerns victimless crimes, namely, individuals who engage in consensual conducts which inflict only harm on themselves but not on third parties, such as prostitution, pornography, sadomasochism, gambling, and most notably, drug crimes.

Despite increasing scholarly critique of the continued criminalization of these behaviors, …

Drugs, Dignity And Danger: Human Dignity As A Constitutional Constraint To Limit Overcriminalization, Michal Buchhandler-Raphael

Michal Buchhandler-Raphael

The American criminal justice system is under tremendous pressures, increasingly collapsing under its heavy weight, thus requiring inevitable change. One notable feature responsible for this broken system is over-criminalization: the scope of criminal law is constantly expanding, making individuals liable to conviction and punishment for an ever-wider range of behaviors. One area where over-criminalization is most notable concerns victimless crimes, namely, individuals who engage in consensual conducts which inflict only harm on themselves but not on third parties, such as prostitution, pornography, sadomasochism, gambling, and most notably, drug crimes.

Despite increasing scholarly critique of the continued criminalization of these behaviors, …

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 …

Of “Just Systems” And Lotteries: Thoughts And Reflections On Maples V. Thomas, Ryan K. Melcher

Ryan K Melcher

In 2012, the Supreme Court handed down its seven-to-two ruling in the case of Maples v. Thomas, a sad tale of attorney-ethics disasters and a seemingly broken (assuming it ever worked) Alabama criminal-justice system. Although the Court held that the “extraordinary” facts of the case warranted excusing Maples’s procedural default in his federal habeas corpus petition (namely, his failure to file a petition in time), it did not make entirely clear whether this was a one-time-only deal or a “template” (as dissenting Justice Scalia asserted) for future petitioners seeking relief based on similar falters of their post-conviction-level attorneys. This Article …

Juvenile Crime Regulation And The Moral Panic Problem, Elizabeth S. Scott

Elizabeth S Scott

JUVENILE CRIME REGULATION AND THE MORAL PANIC PROBLEM Elizabeth S. Scott American lawmakers hold complex and somewhat inconsistent attitudes about the appropriate response to juvenile crime. The dominant contemporary view is exemplified by recent Supreme Court opinions rejecting harsh sentences for juveniles as unconstitutional; on this view, young offenders are fundamentally different from adults and their crimes are seen as the product of immaturity. But sometimes a very different view prevails-as it did in the 1990s—of juvenile offenders as dangerous criminals whose age and immaturity are irrelevant to criminal punishment. This Essay argues that the tough sentences and punitive law …

Predisposition And Positivism: The Forgotten Foundations Of The Entrapment Doctrine", T. Ward Frampton

T. Ward Frampton

For the past eighty years, the entrapment doctrine has provided a legal defense for those facing federal prosecution, but only for those defendants lacking criminal “predisposition” prior to the government’s inducement. The peculiar contours of this doctrine have generated significant academic debate, yet this scholarship has failed to explain why the entrapment doctrine developed as it did in the first instance. This Article addresses this gap by examining competing views on criminality and punishment in America during the doctrine’s emergence, highlighting the significant (though largely forgotten) impact of positivist criminology on the early twentieth-century legal imagination. Though positivism has long …

Prime Time For Japan To Take Another Step Forward In Lay Participation: Exploring Expansion To Civil Trials, Matthew J. Wilson

Matthew J. Wilson

As juries in the U.S. and other parts of the world have increasingly come under attack, many countries in Asia have recently turned to juries or quasi-juries in an effort to enhance judicial credibility, ensure justice, facilitate civic engagement, and even stimulate economic reform and recovery. In fact, Japan has led the recent movement of citizen participation in criminal judicial proceedings, and other Asian powers including South Korea, Taiwan, and China have followed its lead to varying degrees. Eyes around the world are focusing on Japan to see how its new jury system (more commonly known as its “lay judge …

The Troubling Role Of Federal Registration In Proving Intellectual Property Crimes, Susan M. Richey

Susan M Richey

No abstract provided.

The Troubling Role Of Federal Registration In Proving Intellectual Property Crimes, Susan M. Richey

Susan M Richey

No abstract provided.