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Promptly Proving The Need To Detain For Post-Entry Social Control Deportation, Mary Holper Jan 2018

Promptly Proving The Need To Detain For Post-Entry Social Control Deportation, Mary Holper

Boston College Law School Faculty Papers

When a person suspected of a crime is arrested without a warrant, the Fourth Amendment guarantees that freedom may not be taken away except upon a neutral magistrate judge’s prompt confirmation that probable cause exists that this person in fact committed the crime. In contrast, in the deportation process, a person is often detained for weeks before a judge determines that the noncitizen is actually deportable, thus justifying detention. Even the separate procedures available to review custody do not suffice because the mandatory detention statute renders many detainees ineligible for review by a judge. If they are entitled to ...


The Unreasonable Seizures Of Shadow Deportations, Mary Holper Sep 2017

The Unreasonable Seizures Of Shadow Deportations, Mary Holper

Boston College Law School Faculty Papers

President Trump, during his campaign, promised a “deportation task force” to swiftly deport the eleven million undocumented noncitizens in the United States. Within his first week in office, he issued two Executive Orders calling for stricter immigration enforcement and a stronger border. The Department of Homeland Security (“DHS”) Memos implementing his interior and border enforcement executive orders indicate that DHS will use every tool to enforce the immigration laws, expanding the use of procedural tools that bypass immigration courts and ensuring that noncitizens remain detained during these “shadow” deportations.Two of these procedural tools, administrative removal and expedited removal, allow ...


The Grand Jury: A Shield Of A Different Sort, R. Michael Cassidy, Julian A. Cook Iii Jun 2017

The Grand Jury: A Shield Of A Different Sort, R. Michael Cassidy, Julian A. Cook Iii

Boston College Law School Faculty Papers

According to the Washington Post, 991 people were shot to death by police officers in the United States during calendar year 2015, and 957 people were fatally shot in 2016. A disproportionate percentage of the citizens killed in these police-civilian encounters were black. Events in Ferguson, Missouri; Chicago, Illinois; Charlotte, North Carolina; Baton Rouge, Louisiana; and Staten Island, New York - to name but a few affected cities - have now exposed deep distrust between communities of color and law enforcement. Greater transparency is necessary to begin to heal this culture of distrust and to inform the debate going forward about police ...


Mcdonnell And The Criminalization Of Politics, George D. Brown Jan 2017

Mcdonnell And The Criminalization Of Politics, George D. Brown

Boston College Law School Faculty Papers

The purpose of this article is to analyze the critique and McDonnell's impact on it. As for McDonnell itself, I contend that the decision gives proponents of the critique less than they claim. The opinion seems to say that an official whose case is identical to McDonnell's could, under a proper approach to bribery, be prosecuted for the same crimes, with the same facts used as evidence. Indeed, the Court raised the possibility that McDonnell himself could be successfully prosecuted in a retrial. The article begins with a discussion of the critique in order to put McDonnell in ...


The Beast Of Burden In Immigration Bond Hearings, Mary Holper Oct 2016

The Beast Of Burden In Immigration Bond Hearings, Mary Holper

Boston College Law School Faculty Papers

In this article, I examine the burden of proof in bond proceedings. I apply theories for why burdens of proof exist in the law to demonstrate why the government should bear the burden of proof. I also argue that in order to ensure that such detention comports with Due Process, the government must prove, by clear and convincing evidence, that a detainee is dangerous. This presumption of freedom previously existed, yet was eviscerated by the former Immigration and Naturalization Service in a 1997 regulation and the Board of Immigration Appeals in a 1999 decision. That the detainee must bear the ...


Sentencing Reform: The Power Of Reasons, R. Michael Cassidy, Robert L. Ullmann Jul 2016

Sentencing Reform: The Power Of Reasons, R. Michael Cassidy, Robert L. Ullmann

Boston College Law School Faculty Papers

No abstract provided.


Unintended Consequences: Addressing The Impact Of Domestic Violence Mandatory And Pro-Arrest Policies And Practices On Girls And Young Women, Francine Sherman Jun 2016

Unintended Consequences: Addressing The Impact Of Domestic Violence Mandatory And Pro-Arrest Policies And Practices On Girls And Young Women, Francine Sherman

Boston College Law School Faculty Papers

The OJJDP-funded National Girls Initiative and the Office on Violence Against Women (OVW) convened a roundtable of advocates to discuss the unintended consequences of mandatory and pro-arrest policies for domestic violence on girls and young women. Out of that convening arose this summary report, Unintended Consequences: Addressing the Impact of Domestic Violence Mandatory and Pro-Arrest Policies and Practices on Girls and Young Women. Our hope is that this summary report fuels a conversation about the unintended consequences and impact of mandatory and pro-arrest domestic violence policies on girls, young women, and women, as well as the disproportionate impact on communities ...


The British Experience With Hearsay Reform: A Cautionary Tale, Mark S. Brodin Mar 2016

The British Experience With Hearsay Reform: A Cautionary Tale, Mark S. Brodin

Boston College Law School Faculty Papers

Among the proposals being considered by the Advisory Committee on the Federal Rules of Evidence (“the Committee”) is the scrapping of the categorical exception regime for hearsay, leaving questions of reliability and admissibility ad hoc to district court judges along the lines of Federal Rules of Evidence (FRE) 403 and 807. Over the past decades, the British have moved toward this approach, and it is the purpose of this Article to identify the lessons that can be learned from that experience, especially with regard to criminal prosecutions and the right of confrontation.


Small Cells, Big Problems: The Increasing Precision Of Cell Site Location Information And The Need For Fourth Amendment Protections, Robert M. Bloom, William T. Clark Jan 2016

Small Cells, Big Problems: The Increasing Precision Of Cell Site Location Information And The Need For Fourth Amendment Protections, Robert M. Bloom, William T. Clark

Boston College Law School Faculty Papers

The past fifty years has witnessed an evolution in technology advancement in police surveillance. Today, one of the essential tools of police surveillance is something most Americans carry with them in their pockets every day, the cell phone. Cell phones not only contain a huge repository of personal data, they also provide continuous surveillance of a person’s movement known as cell site location information (CSLI).

In 1986, Congress sought to provide some privacy protections to CSLI in the Stored Communication Act. Although this solution may have struck the proper balance in an age when cell phones were a mere ...


The Murder Of Black Males In A World Of Non-Accountability: The Surreal Trial Of George Zimmerman For The Killing Of Trayvon Martin, Mark S. Brodin Jan 2016

The Murder Of Black Males In A World Of Non-Accountability: The Surreal Trial Of George Zimmerman For The Killing Of Trayvon Martin, Mark S. Brodin

Boston College Law School Faculty Papers

A critique of the "prosecution" of George Zimmerman for the murder of Trayvon Martin, concluding that the effort was botched from the beginning, tragically missing an early opportunity to hold killers of unarmed black youth accountable.


Silencing Grand Jury Witnesses, R. Michael Cassidy Jan 2016

Silencing Grand Jury Witnesses, R. Michael Cassidy

Boston College Law School Faculty Papers

The investigations of local police officers for causing the deaths of unarmed civilians in Ferguson, Missouri and Staten Island, New York have generated significant national discourse about the fairness and transparency of grand jury proceedings. This article addresses one crucial aspect of this ongoing debate; that is, whether witnesses before the grand jury should be allowed to talk to each other and to the media about the contents of their testimony.

In the federal system and in the majority of states that still employ the grand jury as an investigative and charging tool, obligations of grand jury secrecy do not ...


Article 32 Hearings: A Road Map For Grand Jury Reform, Claire P. Donohue Jan 2016

Article 32 Hearings: A Road Map For Grand Jury Reform, Claire P. Donohue

Boston College Law School Faculty Papers

No abstract provided.


Immigration Enforcement And State Post-Conviction Adjudications: Towards Nuanced Preemption And True Dialogical Federalism, Daniel Kanstroom Jan 2016

Immigration Enforcement And State Post-Conviction Adjudications: Towards Nuanced Preemption And True Dialogical Federalism, Daniel Kanstroom

Boston College Law School Faculty Papers

The relationship between federal immigration enforcement and state criminal, post-conviction law exemplifies certain inevitable complexities of preemption and federalism. Because neither perfect uniformity nor complete preemption is possible, we must consider two questions: First, whether (and, if so, how) state courts adjudicating rights should account for legitimate federal immigration law goals, such as uniformity and finality? Second, how should federal courts deploy preemption and federalism principles when faced with challenges by federal authorities to such state court actions? This article offers a framework of “dialogical federalism,” seeking to normalize certain tensions under a rubric of dialogue, rather than formal hierarchy ...


Gender Injustice: System-Level Juvenile Justice Reforms For Girls, Francine Sherman, Annie Balck Sep 2015

Gender Injustice: System-Level Juvenile Justice Reforms For Girls, Francine Sherman, Annie Balck

Boston College Law School Faculty Papers

Despite decades of attention, the proportion of girls in the juvenile justice system has increased and their challenges have remained remarkably consistent, resulting in deeply rooted systemic gender injustice. The literature is clear that girls in the justice system have experienced abuse, violence, adversity, and deprivation across many of the domains of their lives—family, peers, intimate partners, and community. There is also increasing understanding of the sorts of programs helpful to these girls. What is missing is a focus on how systems—and particularly juvenile justice systems—can be redesigned to protect public safety and support the healing and ...


Promoting Diversity In The Criminal Justice System, R. Michael Cassidy Apr 2015

Promoting Diversity In The Criminal Justice System, R. Michael Cassidy

Boston College Law School Faculty Papers

No abstract provided.


Punishing Terrorists: Congress, The Sentencing Commission, The Guidelines, And The Courts, George D. Brown Apr 2014

Punishing Terrorists: Congress, The Sentencing Commission, The Guidelines, And The Courts, George D. Brown

Boston College Law School Faculty Papers

There is considerable uncertainty surrounding the law and policy of federal sentencing. This uncertainty can be traced to United States v. Booker, in which the Supreme Court struck down the existing system of mandatory Federal Sentencing Guidelines, but preserved them as “advisory.” Federal courts at all three levels have since struggled with the legal status of the Guidelines and how to apply them. The Court’s recent decision in Peugh v. United States seems to treat the Guidelines as true “law.”

This uncertainty has serious consequences for the “War on Terror.” The Article III courts are the principal forum in ...


Leaker Traitor Whistleblower Spy: National Security Leaks And The First Amendment, Mary-Rose Papandrea Mar 2014

Leaker Traitor Whistleblower Spy: National Security Leaks And The First Amendment, Mary-Rose Papandrea

Boston College Law School Faculty Papers

The article discusses traitors, national security leaks in the U.S., the First Amendment to the nation's Constitution as of March 32014, focusing on the U.S. Espionage Act and criminal penalties for constitutional treason. The alleged whistleblowers Bradley Manning and Edward Snowden are mentioned, along with prosecutions for criminal security leaks in America. Immunity is examined in relation to U.S. government employees and independent contractors. Freedom of speech rights are also assessed.


"Conditional Admission" And Other Mysteries: Setting The Record Straight On The "Admission" Status Of Refugees And Asylees, Laura Murray-Tjan Jan 2014

"Conditional Admission" And Other Mysteries: Setting The Record Straight On The "Admission" Status Of Refugees And Asylees, Laura Murray-Tjan

Boston College Law School Faculty Papers

Hundreds of thousands of U.S. residents live in the country lawfully and indefinitely but are not citizens. The rules governing the lives and freedom of these residents vary depending on their immigration status. This Article explores the boundaries of and rules attaching to two such important groups–resettled refugees and asylees–and explains why they must be deemed (unconditionally) admitted under the Immigration and Nationality Act. Whether a noncitizen is deemed “admitted” often determines whether he or she will be deported–banished–from the United States. It also may determine whether the noncitizen is subject to months or years ...


(Ad)Ministering Justice: A Prosecutor's Ethical Duty To Support Sentencing Reform, R. Michael Cassidy Jan 2014

(Ad)Ministering Justice: A Prosecutor's Ethical Duty To Support Sentencing Reform, R. Michael Cassidy

Boston College Law School Faculty Papers

This article stakes out an ethical argument in favor of prosecutorial leadership on sentencing reform. Prosecutors have a duty as “ministers of justice” to go beyond seeking appropriate conviction and punishment in individual cases, and to think about the delivery of criminal justice on a systemic level ― promoting criminal justice policies that further broader societal ends. While other authors have explored the tensions between a prosecutor’s adversarial duties and “minister of justice” role in the context of specific litigation, few have explored what it means to be an “administer” of justice in the wider political arena. The author sets ...


Justice For Girls: Are We Making Progress?, Francine Sherman Jul 2013

Justice For Girls: Are We Making Progress?, Francine Sherman

Boston College Law School Faculty Papers

Social expectations that girls behave obediently, modestly, and cautiously result in the detention and incarceration of girls who fight back at home or in intimate relationships and who are victims of sexual exploitation. The structural discrimination that supports detaining and incarcerating girls for violating these norms is both hard to see and hard to challenge. It is often hidden behind outward good will toward girls and legitimate expressions of concern for their vulnerability and possible victimization; and it is facilitated by the many opportunities for multifactored, "best interests" -based discretionary decisions built into the juvenile justice and child welfare systems ...


Making Detention Reform Work For Girls: A Guide To Juvenile Detention Reform, Francine Sherman, Richard A. Mendel, Angela Irvine Apr 2013

Making Detention Reform Work For Girls: A Guide To Juvenile Detention Reform, Francine Sherman, Richard A. Mendel, Angela Irvine

Boston College Law School Faculty Papers

Throughout the nation, court-involved girls frequently pose minimal risk to public safety but suffer with significant social service needs. Data on detention utilization show that girls are being disproportionately detained for misdemeanors, status offenses and technical violations of probation and parole. In short, many girls enter detention for the wrong reasons and many remain in detention for extended periods harmful to them and contrary to best practice.

This practice guide responds to a call from both mature and new sites from within the Juvenile Detention Alternatives Initiative (JDAI) network, which continue to find that effectively serving and supervising girls is ...


Notes On A Terrorism Trial – Preventive Prosecution, “Material Support” And The Role Of The Judge After United States V. Mehanna, George D. Brown Jan 2013

Notes On A Terrorism Trial – Preventive Prosecution, “Material Support” And The Role Of The Judge After United States V. Mehanna, George D. Brown

Boston College Law School Faculty Papers

The terrorism trial of Tarek Mehanna, primarily for charges of providing “material support” to terrorism, presented elements of a preventive prosecution as well as the problem of applying Holder v. Humanitarian Law Project (HLP) to terrorism - related speech. This Article examines both aspects of the case, with emphasis on the central role of the trial judge. As criminal activity becomes more amorphous, the jury looks to the judge for guidance. His rulings on potentially prejudicial evidence — which may show just how much of a “terrorist” the defendant is — are the key aspect of this guidance. If the defendant is found ...


The Fourth Amendment Fetches Fido: The Future Of Dog Searches, Robert M. Bloom, Dana L. Walsh Jan 2013

The Fourth Amendment Fetches Fido: The Future Of Dog Searches, Robert M. Bloom, Dana L. Walsh

Boston College Law School Faculty Papers

For over thirty-five years, the Supreme Court has grappled with the controversial issue of affirmative action and race preference. Beginning with Justice Lewis Powell’s influential opinion in Bakke v. U. Cal. Davis in 1978, leeway has been permitted for admissions policies that take account of race, as long as it is not given determinative weight so as to exclude consideration of nonminority candidates, or used to set quotas. As the Court has become increasingly conservative, however, its license for race preference has tightened considerably, and it has become receptive to “reverse discrimination” plaintiffs challenging such policies in universities and ...


The Model Penal Code’S Wrong Turn: Renunciation As A Defense To Criminal Conspiracy, R. Michael Cassidy, Gregory Massing Apr 2012

The Model Penal Code’S Wrong Turn: Renunciation As A Defense To Criminal Conspiracy, R. Michael Cassidy, Gregory Massing

Boston College Law School Faculty Papers

While the Model Penal Code was certainly one the most influential developments in criminal law in the past century, the American Law Institute (ALI) took a seriously wrong turn by recognizing a defense of “renunciation” to the crime of conspiracy. Under the Model Penal Code formulation, a member of a conspiracy who later disavows the agreement and thwarts its objective (for example, by notifying authorities of the planned crime in order to prevent its completion) is afforded a complete defense to conspiracy liability. This defense has enormous implications for crimes involving national security and terrorism, which are typically planned covertly ...


Plea Bargaining, Discovery, And The Intractable Problem Of Impeachment Disclosures, R. Michael Cassidy Oct 2011

Plea Bargaining, Discovery, And The Intractable Problem Of Impeachment Disclosures, R. Michael Cassidy

Boston College Law School Faculty Papers

In a criminal justice system where guilty pleas are the norm and trials the rare exception, the issue of how much discovery a defendant is entitled to before allocution has immense significance. This article examines the scope of a prosecutor’s obligation to disclose impeachment information before a guilty plea. This question has polarized the criminal bar and bedeviled the academic community since the Supreme Court’s controversial decision in United States v. Ruiz (2002). A critical feature of the debate has been the enduring schism between a prosecutor’s legal and ethical obligations – a gulf that the American Bar ...


The New Moral Turpitude Test: Failing Chevron Step Zero, Mary Holper Jun 2011

The New Moral Turpitude Test: Failing Chevron Step Zero, Mary Holper

Boston College Law School Faculty Papers

In the waning days of the Bush administration, Attorney General Michael Mukasey decided In re Silva-Trevino, in which he reversed over a century of immigration law precedent by creating a new moral turpitude test. He abandoned the well-entrenched "categorical approach," the mechanism by which immigration judges decide whether a noncitizen is removable for a criminal conviction, and allowed judges to engage in a factual inquiry of whether an offense involves moral turpitude. The Attorney General made such a broad, sweeping change through a process that allowed no input from affected parties, including the individual whose case became the new precedent ...


New Standards Of Justice: Uncovering Motivations For Mexico’S Recent Judicial Reforms Amid A Security Crisis, Kindra Mohr Oct 2009

New Standards Of Justice: Uncovering Motivations For Mexico’S Recent Judicial Reforms Amid A Security Crisis, Kindra Mohr

Law and Justice in the Americas Working Paper Series

From the introduction:

Mexico is in a state of siege. In recent years, organized crime and drug-related violence have escalated dramatically, taking innocent lives and leaving the country mired in bloodshed. The Mexican government, under the leadership of President Felipe Calderón, has responded in part by significantly extending the reach of its security operations, deploying thousands of federal police officers and military troops to combat the activities of drug cartels, and collaborating with the United States on an extensive regional security plan known as the Mérida Initiative. In the midst of the security crisis, however, the government has somewhat paradoxically ...


Specific Intent And The Purposeful Narrowing Of Victim Protection Under The Convention Against Torture, Mary Holper Jan 2009

Specific Intent And The Purposeful Narrowing Of Victim Protection Under The Convention Against Torture, Mary Holper

Boston College Law School Faculty Papers

Article 3 of the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment of Punishment (“CAT”) prevents removal of a person to a country where there is a substantial likelihood of torture. The U.S. ratified the CAT in 1994, yet modified the treaty’s definition of “torture” by inserting an understanding that “torture” includes only pain or suffering that is “specifically intended.” Specific intent, an antiquated criminal law term, has several different meanings in criminal law jurisprudence. In Matter of J-E-, the Board of Immigration Appeals in 2002 chose the most narrow definition of specific intent ...


The Establishment Of A Rule Against Hearsay In Romano-Canonical Procedure, Frank R. Herrmann Jan 1995

The Establishment Of A Rule Against Hearsay In Romano-Canonical Procedure, Frank R. Herrmann

Boston College Law School Faculty Papers

No abstract provided.


Facing The Accuser: Ancient And Medieval Precursors Of The Confrontation Clause, Frank R. Herrmann, Brownlow M. Speer Apr 1994

Facing The Accuser: Ancient And Medieval Precursors Of The Confrontation Clause, Frank R. Herrmann, Brownlow M. Speer

Boston College Law School Faculty Papers

No abstract provided.