Law Commons^™

Threaten Sentencing Enhancement, Coerce Plea, (Wash, Rinse,) Repeat: A Cause Of Wrongful Conviction By Guilty Plea, Wes R. Porter

Publications

Our American criminal justice system is too often described as broken. It was not a clean break in a single, isolated location. Instead, our criminal justice system suffers from many, many little nicks, bumps, and bruises at the hands of its keepers. The evolution of sentencing enhancements within our criminal justice system represents the latest nagging, reoccurring injury. In the ultimate Trojan horse to criminal defendants, the Supreme Court sought to protect the individual rights of the accused with its recent decisions on sentencing enhancements. But at the hands of lawmakers, the judiciary, and prosecutors, criminal defendants suffer more. Our …

Just Between Yoo And He: Two Justice Department Lawyers' Imaginary Torturous Email, Stephen A. Rosenbaum

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On December 9, 2014, the U.S. Senate Select Committee on Intelligence released its long-awaited Committee Study of the Central Intelligence Agency’s Detention and Interrogation Program, which The New York Times described as “a portrait of depravity that is hard to comprehend and even harder to stomach.” The Times had reported four years earlier that a number of Department of Justice (DoJ) emails were determined to be missing during the Office of Professional Responsibility's investigation of the Bush Administration memoranda providing legal justification for “enhanced interrogations,” the so-called torture memos. What follows is an imaginary exchange of emails between two young …

Viewpoint: Sentencing Guidelines Needn't Be Scrapped, Wes R. Porter

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U.S. District Judge Jed Rakoff of the Southern District of New York has offered an important voice on a wide range of issues in federal practice, typically from the bench. In 2011, for example, he refused to rubber-stamp a $285 million proposed civil settlement between the Securities and Exchange Commission and banking giant Citigroup. Rakoff recently sounded off from the podium on the current state of federal sentencing. On March 7, as the keynote speaker at the 27th Annual National Institute on White Collar Crime in Las Vegas, Rakoff railed against the numerical calculations and formulaic approach that still drives …

Necessary Suffering?: Weighing Government And Prisoner Interests In Determining What Is Cruel And Unusual, Brittany Glidden

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Part I of this Article gives background on the origins of the Eighth Amendment doctrine concerning prison conditions and identifies persistent conflicts regarding the theoretical underpinnings for the doctrine. This history then provides context for Part II's description of the problems plaguing the current two-prong Eighth Amendment test. Part III includes a brief examination of the theoretical basis underlying other areas of Eighth Amendment jurisprudence, including those challenging criminal sentences, fines, and method of execution cases. This review demonstrates that nearly all of these doctrines rely on a determination of the "excessiveness" of a given punishment, a proportionality analysis that …

Requiring The State To Justify Supermax Confinement For Mentally Ill Prisoners: A Disability Discrimination Approach, Brittany Glidden, Laura Rovner

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The Eighth Amendment has long served as the traditional legal vehicle for challenging prison conditions, including long-term isolation or "supermax" confinement. As described by Hafemeister and George in their article, The Ninth Circle of Hell: An Eighth Amendment Analysis of Imposing Prolonged Supermax Solitary Confinement on Inmates with a Mental Illness, some prisoners with mental illness have prevailed in Eighth Amendment challenges to prolonged isolation. Yet an equal or greater number of these claims have been unsuccessful. This Essay considers why some of these cases fail, and suggests that one reason is that Eighth Amendment jurisprudence does not contain a …

No Change In Sight For Sentencing Guidelines, Wes R. Porter

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In the post-Booker era, the commission must reinvent itself to provide a useful tool for the courts in determining punishment, explains Wes Reber Porter of Golden Gate University School of Law.

Confrontation Clause Again Before High Court, Robert K. Calhoun

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This past term, the U.S. Supreme Court decided the latest in a series of confrontation clause cases that began in 2004 with Crawford v. Washington, 541 U.S. 36. In Bullcoming v. New Mexico, 11 C.D.O.S. 7706, the court held that the confrontation clause does not permit the government to introduce a forensic lab report in a criminal trial through the in-court testimony of an analyst who did not personally perform or observe the test that formed the basis for the report.

The Pendulum In Federal Sentencing Can Also Swing Toward Predictability: A Renewed Role For Binding Plea Agreements Post-Booker, Wes R. Porter

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This article argues that in addition to the swing toward increased judicial discretion and overall lower sentences, the pendulum also can swing toward predictability and informed decision making for the defendant. The federal sentencing scheme must allow a defendant to pursue, negotiate, and contract for what the defendant believes is a uniform, proportional, and fair sentence. Increased use of binding plea agreements in federal court could complement the progressive developments following Booker and restore some predictability and informed decision making to federal sentencing. However, without significant rule, policy, and perception changes, like those proposed in Part VI of this article, …

Wrongfully Incarcerated, Randomly Compensated - How To Fund Wrongful-Conviction Compensation Statutes, Deborah M. Mostaghel

Publications

It is sadly true that there are people in this country who are sentenced to prison, and even death, for crimes they did not commit. Some have been exonerated and released, largely as the result of innocence projects that have helped prisoners assemble DNA evidence that shows they were not the perpetrators. Some have been exonerated years after they died in prison. Many others are no doubt never exonerated. For a wrongfully convicted person, exoneration is the end of one road but only the beginning of another. Unbelievably, exonerees starting out on the road back to society find that they …

Everyone Deserves Defense, Peter Keane

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In his decades as a public defender, Peter Keane represented murderers and other criminals as skillfully as he could – even when he knew they were guilty . Keane believes every one, no matter what they’ve done, deserves to have somebody on their side.

Search For Truth Or Reality Show?, Peter Keane

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No abstract provided.

Advising The Pro Se Defendant: The Trial Court's Duties Under Faretta, Myron Moskovitz

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In Faretta v. California, the United States Supreme Court held that a defendant in a criminal trial has a constitutional right to represent himself-to act "pro se." "The Sixth Amendment does not provide merely that a defense shall be made for the accused; it grants to the accused personally the right to make his defense.

If a defendant chooses to represent himself, what, if anything, must the trial court do to assist him? Must the trial court advise him of his right to exercise peremptory challenges? To make evidentiary objections? To cross-examine prosecution witnesses? To subpoena his own witnesses? To …

When The State Is Silent: An Analysis Of Aedpa's Adjudication Requirement, Brittany Glidden

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Note on Bell v. Jarvis (Bell II), 236 F.3d 149 (4th Cir. 2000) (en banc), cert. denied sub nom., Bell v. Beck, 122 S. Ct. 74 (2001).

When Does A Retroactive Decrease In The Frequency Of Parole Reconsideration Hearings Violate The Ex Post Facto Clause?, Rachel A. Van Cleave

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No abstract provided.

Does The Ex Post Facto Clause Bar Texas From Retroactively Limiting The Need For Proof That A Sex-Offense Victim Made An "Outcry"?, Rachel A. Van Cleave

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No abstract provided.

The Role Of United States Federal Courts In Extradition Matters: The Rule Of Non-Inquiry, Preventive Detention And Comparative Legal Analysis, Rachel A. Van Cleave

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This paper argues that applying the rule of non-inquiry to the issue of whether the requested person has been charged is analytically incorrect where the relevant treaty defines as extraditable persons who have been charged or convicted of certain offenses, thus requiring a judicial determination as to whether the person requested has been charged as part of the initial inquiry into extraditability. By contrast, the rule of non-inquiry is typically used to reject arguments of persons who are otherwise extraditable. This issue has not received much analysis perhaps because federal courts are reluctant to look beyond an arrest warrant issued …

Waiver Of The Right To Appeal, Robert K. Calhoun

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This Article explores the legal and constitutional issues raised by appeal waivers. Section I analyzes the current state of the case law. Section II explores the due process challenge to appeal waivers, and concludes that such a challenge would be difficult to sustain given the current state of due process law. It, nonetheless, goes on to suggest that a key premise of due process theory as it relates to plea bargaining- the presumed equality of bargaining power between the prosecution and the defense-may be ripe for challenge. Section ill discusses the public policy arguments for and against appeal waivers, and …

Preparing Your Client For Trial...Another Point Of View, Bernard L. Segal

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No abstract provided.