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Articles 1 - 30 of 167
Full-Text Articles in Law
Penal Culture And Hyperincarceration: The Revival Of The Prison, Alex Steel, Chris Cunneen, David Brown, Eileen Baldry, Melanie Schwartz, Mark Brown
Penal Culture And Hyperincarceration: The Revival Of The Prison, Alex Steel, Chris Cunneen, David Brown, Eileen Baldry, Melanie Schwartz, Mark Brown
David C. Brown
What are the various forces influencing the role of the prison in late modern societies? What changes have there been in penality and use of the prison over the past 40 years that have led to the re-valorization of the prison? Using penal culture as a conceptual and theoretical vehicle, and Australia as a case study, this book analyses international developments in penality and imprisonment. Authored by some of Australia’s leading penal theorists, the book examines the historical and contemporary influences on the use of the prison, with analyses of colonialism, post colonialism, race, and what they term the ‘penal/colonial …
Immigration Policing And Federalism Through The Lens Of Technology, Surveillance, And Privacy, Anil Kalhan
Immigration Policing And Federalism Through The Lens Of Technology, Surveillance, And Privacy, Anil Kalhan
Anil Kalhan
With the deployment of technology, federal programs to enlist state and local police assistance with immigration enforcement are undergoing a sea change. For example, even as it forcefully has urged invalidation of Arizona’s S.B. 1070 and similar state laws, the Obama administration has presided over the largest expansion of state and local immigration policing in U.S. history with its implementation of the “Secure Communities” program, which integrates immigration and criminal history database systems in order to automatically ascertain the immigration status of every individual who is arrested and booked by state and local police nationwide. By 2012, over one fifth …
Recent Decision Note, Thomas L. Shaffer
Prosecutorial Decriminalization, Erik Luna
Prosecutorial Decriminalization, Erik Luna
Erik Luna
The article discusses the legal concept of prosecutorial decriminalization in the U.S. as of July 2012, focusing on an analysis of the use of criminal laws to enforce the public standards of morality in America. Penal codes and criminal sanctions are addressed, along with several reform measures aimed at restructuring a criminal law system in the U.S. which has reportedly been overburdened by overcriminalization. The use of the American judiciary system as a check on overcriminalization is mentioned.
The Trial Court's Gatekeeper Role Under Frye, Daubert, And Kumho: A Special Look At Children's Cases, John Eric Smithburn
The Trial Court's Gatekeeper Role Under Frye, Daubert, And Kumho: A Special Look At Children's Cases, John Eric Smithburn
J. Eric Smithburn
No abstract provided.
Proportional Mens Rea, Stephen F. Smith
Localism And Capital Punishment, Stephen F. Smith
Localism And Capital Punishment, Stephen F. Smith
Stephen F. Smith
Professor Adam Gershowitz presents an interesting proposal to transfer from localities to states the power to enforce the death penalty. In his view, state-level enforcement would result in a more rationally applied death penalty because states would be much more likely to make capital charging decisions based on desert, without the distorting influence of the severe resource constraints applicable to all but the wealthiest of localities. As well conceived as Professor Gershowitz’s proposal is, however, I remain skeptical that statewide enforcement of the death penalty would be preferable to continued local enforcement. First, Professor Gershowitz underestimates the benefits of localism …
Activism As Restraint: Lessons From Criminal Procedure, Stephen F. Smith
Activism As Restraint: Lessons From Criminal Procedure, Stephen F. Smith
Stephen F. Smith
No abstract provided.
Taking Strickland Claims Seriously, Stephen F. Smith
Taking Strickland Claims Seriously, Stephen F. Smith
Stephen F. Smith
Every criminal defendant is promised the right to the effective assistance of counsel. Whether at trial or first appeal of right, due process is violated when attorney negligence undermines the fairness and reliability of judicial proceedings. That, at least, is the black-letter law articulated in Strickland v. Washington, 466 U.S. 688 (1984). In practice, however, the right to effective representation has meant surprisingly little over the last two decades. Under the standards that emerged from Strickland, scores of defendants have received prison or death sentences by virtue of serious unprofessional errors committed by their attorneys.
This Essay canvasses a line …
Religion And Procedure, Robert E. Rodes
Religion And Procedure, Robert E. Rodes
Robert Rodes
God has no use for procedural rules since He knows the full truth and is able to exercise absolute justice simultaneously alongside complete mercy. This paper discusses the religious significance of legal rules of procedure in light of this truth. It finds that since we, unlike God, are inherently fallible, we are forced to implement procedures in the legal pursuit of our goals of truth, justice, and mercy. These procedures remain imperfect in implementing these goals, as compromises must often be made between competing values such as mercy on one hand and justice on the other. Nevertheless, though legal procedure …
The Voice Of Reason—Why Recent Judicial Interpretations Of The Antiterrorism And Effective Death Penalty Act’S Restrictions On Habeas Corpus Are Wrong, Judith L. Ritter
The Voice Of Reason—Why Recent Judicial Interpretations Of The Antiterrorism And Effective Death Penalty Act’S Restrictions On Habeas Corpus Are Wrong, Judith L. Ritter
Judith L Ritter
By filing a petition for a federal writ of habeas corpus, a prisoner initiates a legal proceeding collateral to the direct appeals process. Federal statutes set forth the procedure and parameters of habeas corpus review. The Antiterrorism and Effective Death Penalty Act (AEDPA) first signed into law by President Clinton in 1996, included significant cut-backs in the availability of federal writs of habeas corpus. This was by congressional design. Yet, despite the dire predictions, for most of the first decade of AEDPA’s reign, the door to habeas relief remained open. More recently, however, the Supreme Court reinterpreted a key portion …
Correcting A Fatal Lottery: A Proposal To Apply The Civil Discrimination Standards To The Death Penalty, Joseph Thomas
Correcting A Fatal Lottery: A Proposal To Apply The Civil Discrimination Standards To The Death Penalty, Joseph Thomas
Joseph Thomas
Claims of discrimination are treated differently in the death penalty context. Discrimination in employment, housing, civil rights and jury venire all use a burden-shifting framework with the preponderance of the evidence as the standard. Discrimination that occurs in death penalty proceedings is the exception to the rule -- the framework offers less protections; there is only one phase of argumentation, with a heightened evidentiary standard of “exceptionally clear proof.” With disparate levels of protections against discrimination, the standard and framework for adjudicating claims of discrimination in the death penalty is unconstitutional.
Death is different as a punishment. But does discrimination …
Correcting A Fatal Lottery: A Proposal To Apply The Civil Discrimination Standards To The Death Penalty, Joseph Thomas
Correcting A Fatal Lottery: A Proposal To Apply The Civil Discrimination Standards To The Death Penalty, Joseph Thomas
Joseph Thomas
Claims of discrimination are treated differently in the death penalty context. Discrimination in employment, housing, civil rights and jury venire all use a burden-shifting framework with the preponderance of the evidence as the standard. Discrimination that occurs in death penalty proceedings is the exception to the rule -- the framework offers less protections; there is only one phase of argumentation, with a heightened evidentiary standard of “exceptionally clear proof.” With disparate levels of protections against discrimination, the standard and framework for adjudicating claims of discrimination in the death penalty is unconstitutional.
Death is different as a punishment. But does discrimination …
Cooperating With The Prosecutor: How Many Motions Does It Take To Secure A Sentence That Is Less Than The Mandatory Minimum Provided By Statute?, Jimmy Gurule
Jimmy Gurule
No abstract provided.
The Double Jeopardy Dilemma: Does Criminal Prosecution And Civil Forfeiture In Separate Proceedings Violate The Double Jeopardy Clause?, Jimmy Gurule
Jimmy Gurule
No abstract provided.
Justice Delayed Is Justice Denied: May A Prisoner's Challenge To Parole Revocation Be Delayed Until The Sentence Is Completed And Then Dismissed As Moot?, Jimmy Gurule
Jimmy Gurule
No abstract provided.
Multiple Punishment For Similar Crimes: Is The Double Jeopardy Clause Violated?, Jimmy Gurule
Multiple Punishment For Similar Crimes: Is The Double Jeopardy Clause Violated?, Jimmy Gurule
Jimmy Gurule
No abstract provided.
Depravity Thrice Removed: Using The 'Heinous, Cruel, Or Depraved' Factor To Aggravate Convictions Of Nontriggermen Accomplices In Capital Cases, Richard W. Garnett
Depravity Thrice Removed: Using The 'Heinous, Cruel, Or Depraved' Factor To Aggravate Convictions Of Nontriggermen Accomplices In Capital Cases, Richard W. Garnett
Richard W Garnett
No abstract provided.
What's On Your Mind? Imputing Motive In A Title Vii Case, An Analysis Of Bci Coca-Cola Bottling Co. V. Eeoc, Barbara J. Fick
What's On Your Mind? Imputing Motive In A Title Vii Case, An Analysis Of Bci Coca-Cola Bottling Co. V. Eeoc, Barbara J. Fick
Barbara J. Fick
This article examines the case E.E.O.C. v. BCI Coca-Cola Bottling Co. of Los Angeles, which was scheduled for argument before the Supreme Court, but was dismissed before that argument occurred.
International Perspective, Douglass Cassel
"My Friend Is A Stranger": The Death Penalty And The Global Ius Commune Of Human Rights, Paolo G. Carozza
"My Friend Is A Stranger": The Death Penalty And The Global Ius Commune Of Human Rights, Paolo G. Carozza
Paolo G. Carozza
This article examines the judicial use of foreign jurisprudence in human rights adjudication, using as data a set of court decisions regarding the death penalty from over a dozen different tribunals in different parts of the world. The global human rights norms and judicial discourse on human rights in these cases can be understood and explained by comparing the contemporary practices to the medieval ius commune. The modern ius commune of human rights has three distinct characteristics which it shares with the historical example to which it is analogized: it is broadly transnational in scope and application; it is grounded …
Plea Bargaining And The Criminal Defendant's Obligation To Plead Guilty, Gerard V. Bradley
Plea Bargaining And The Criminal Defendant's Obligation To Plead Guilty, Gerard V. Bradley
Gerard V. Bradley
No abstract provided.
Retribution: The Central Aim Of Punishment, Gerard V. Bradley
Retribution: The Central Aim Of Punishment, Gerard V. Bradley
Gerard V. Bradley
When I worked for the Manhattan District Attorney's Office in the early 1980s, criminal sentences were consistently and dramatically too lenient. Though those years marked the ebb tide for the rehabilitative ideal of punishment and indeterminate "zip-to-ten" sentences, only career felons and those convicted of the most serious crimes were candidates for the sentences they justly deserved. Hamstrung by apparently silly rules of constitutional etiquette and bureaucratic sclerosis, the police were eclipsed in the mind of the public by the cold-blooded Everyman, bound only by the law of the jungle and some elusive sense of justice. Ultimately, popular demand required …
New Paths For The Court: Protections Afforded Juveniles Under Miranda; Effective Assistance Of Counsel; And Habeas Corpus Decisions Of The Supreme Court’S 2010/2011 Term, Richard Klein
Richard Daniel Klein
No abstract provided.
Qualified Immunity Developments: Not Much Hope Left For Plaintiffs, Karen Blum, Erwin Chemerinsky, Martin A. Schwartz
Qualified Immunity Developments: Not Much Hope Left For Plaintiffs, Karen Blum, Erwin Chemerinsky, Martin A. Schwartz
Martin A. Schwartz
No abstract provided.
Davis V. United States: The “Good-Faith” Effort To End The Exclusionary Rule, Michael Dunham
Davis V. United States: The “Good-Faith” Effort To End The Exclusionary Rule, Michael Dunham
Michael Dunham
No abstract provided.
Cases On Criminal Procedure, Robert Bloom
Cell Phone Searches In A Digital World: Blurred Lines, New Realities And Fourth Amendment Pluralism, Steven I. Friedland
Cell Phone Searches In A Digital World: Blurred Lines, New Realities And Fourth Amendment Pluralism, Steven I. Friedland
Steven I. Friedland
State and federal courts are split over whether cell phone searches incident to a lawful arrest are permissible under the Fourth Amendment. The Supreme Court has the opportunity to create uniformity by accepting a certiorari petition in a cell phone search incident to arrest case, either United States v. Wurie or Riley v. California. The Court should do so to create an analysis that incorporates sensory enhancing technology, not avoids it, as it has done to date.
The split in case law evidences a central contradiction. Fourth Amendment rules need to be predictable and based on clear guidelines for effective …
Gideon's Promise And Peril, Alexandra Natapoff
Gideon's Promise And Peril, Alexandra Natapoff
Alexandra Natapoff
Legalized Lynch Mobs In The 21st Century: Racial Improprieties In The Death Penalty, Betsy A. Daniller
Legalized Lynch Mobs In The 21st Century: Racial Improprieties In The Death Penalty, Betsy A. Daniller
Betsy A Daniller
No abstract provided.