Law Commons^™

The Original Meaning Of "Unusual": The Eighth Amendment As A Bar To Cruel Innovation, John F. Stinneford

John F. Stinneford

In recent years, both legal scholars and the American public have become aware that something is not quite right with the Supreme Court's Eighth Amendment jurisprudence. Legal commentators from across the spectrum have described the Court's treatment of the Cruel and Unusual Punishments Clause as "embarrassing," "ineffectual and incoherent," a "mess," and a "train wreck." The framers of the Bill of Rights understood the word "unusual" to mean "contrary to long usage." Recognition of the word's original meaning will precisely invert the "evolving standards of decency" test and ask the Court to compare challenged punishments with the longstanding principles and …

Youth Matters: Miller V. Alabama And The Future Of Juvenile Sentencing, John F. Stinneford

John F. Stinneford

In the Supreme Court's latest Eighth Amendment decision, Miller v. Alabama, the Court held that statutes authorizing mandatory sentences of life in prison with no possibility of parole are unconstitutional as applied to offenders who were under eighteen when they committed their crimes. This short essay examines several themes presented in Miller, including the constitutional significance of youth and science, the legitimacy of mandatory life sentences and juvenile transfer statutes, and the conflict between “evolving standards of decency” and the Supreme Court’s “independent judgment.” This essay also introduces important articles by Richard Frase, Carol Steiker and Jordan Steiker, Franklin Zimring …

The Illusory Eighth Amendment, John F. Stinneford

John F. Stinneford

Although there is no obvious doctrinal connection between the Supreme Court’s Miranda jurisprudence and its Eighth Amendment excessive punishments jurisprudence, the two are deeply connected at the level of methodology. In both areas, the Supreme Court has been criticized for creating “prophylactic” rules that invalidate government actions because they create a mere risk of constitutional violation. In reality, however, both sets of rules deny constitutional protection to a far greater number of individuals with plausible claims of unconstitutional treatment than they protect. This dysfunctional combination of over- and underprotection arises from the Supreme Court’s use of implementation rules as a …

Punishment Without Culpability, John F. Stinneford

John F. Stinneford

For more than half a century, academic commentators have criticized the Supreme Court for failing to articulate a substantive constitutional conception of criminal law. Although the Court enforces various procedural protections that the Constitution provides for criminal defendants, it has left the question of what a crime is purely to the discretion of the legislature. This failure has permitted legislatures to evade the Constitution’s procedural protections by reclassifying crimes as civil causes of action, eliminating key elements (such as mens rea) or reclassifying them as defenses or sentencing factors, and authorizing severe punishments for crimes traditionally considered relatively minor. The …

Incapacitation Through Maiming: Chemical Castration, The Eighth Amendment, And The Denial Of Human Dignity, John F. Stinneford

John F. Stinneford

This year marks the tenth anniversary of California's enactment of the nation's first chemical castration law. This law requires certain sex offenders to receive, as part of their punishment, long-term pharmacological treatment involving massive doses of a synthetic female hormone called medroxyprogesterone acetate (MPA). MPA treatment is described as chemical castration because it mimics the effect of surgical castration by eliminating almost all testosterone from the offender's system. The intended effect of MPA treatment is to alter brain and body function by reducing the brain's exposure to testosterone, thus depriving offenders of most (or all) capacity to experience sexual desire …

School Surveillance And The Fourth Amendment, Jason P. Nance

Jason P. Nance

In the aftermath of several highly-publicized incidents of school violence, public school officials have increasingly turned to intense surveillance methods to promote school safety. The current jurisprudence interpreting the Fourth Amendment generally permits school officials to employ a variety of strict measures, separately or in conjunction, even when their use creates a prison-like environment for students. Yet, not all schools rely on such strict measures. Recent empirical evidence suggests that low-income and minority students are much more likely to experience intense security conditions in their school than other students, even after taking into account factors such as neighborhood crime, school …

The Homicide Survivors’ Fairness-For-Victims Manifesto, Lester Jackson

LESTER JACKSON

Murderer advocates place a far greater value on the lives of the most savage murderers than on the lives of their victims. Let them deny it; their words and deeds conclusively give the lie to that denial. The critical question is this: Whose concept of justice is going to prevail? The concept of a small but vocal well-financed minority with influence and power out of all proportion to its numbers, or that of the large but poorly financed and disorganized majority. In recent decades, the former have dominated. Tragically, compared to media-dominant murderer advocates, victims have been virtually voiceless. Yes, …

Hall V. Florida: The Death Of Georgia's Beyond A Reasonable Doubt Standard, Adam Lamparello

Adam Lamparello

Welcome: We’re Glad Georgia is On Your Mind.

Georgia is on many minds as Warren Hill prepares for a state court hearing to once again begin the process of trying to show that he is intellectually disabled. As Warren Hill continues to flirt with death, one must ask, is Georgia really going to execute someone that nine experts and a lower court twice found to be mentally retarded? The answer is yes, and the Georgia courts do not understand why we are scratching our heads. The answer is simple: executing an intellectually disabled man is akin to strapping a ten-year …

Immigrants Unshackled: The Unconstitutional Use Of Indiscriminate Restraints, Fatma E. Marouf

Fatma E Marouf

This Article challenges the constitutionality of indiscriminately restraining civil immigration detainees during removal proceedings. Not only are immigration detainees routinely placed in handcuffs, leg irons, and belly chains without any individualized determination of the need for restraints, but Immigration and Customs Enforcement (ICE), the prosecuting party, makes the decisions about the use of restraints, rather than the judge. After examining the rationale for the well-established prohibition against the indiscriminate use of restraints during criminal and civil jury trials, and discussing how some courts have extended this rationale to bench trials, this Article contends that ICE’s practice violates substantive and procedural …

The Road Most Travel: Is The Executive’S Growing Preeminence Making America More Like The Authoritarian Regimes It Fights So Hard Against?, Ryan T. Williams

Ryan T. Williams

Punição E Constituição: Cinco Princípios Para O Futuro Da Democracia Brasileira (Punishment And The Constitution: Five Principles For The Future Of Brazilian Democracy), Paulo Barrozo

Paulo Barrozo

Portuguese Abstract: Publicado nos Anais da XXII Conferência da Ordem dos Advogados do Brasil realizada em 2014, este ensaio elabora cinco princípios para orientar a reforma do sistema penal brasileiro visando traze-lo ao centro da arquitetura constitucional de um país comprometido com os valores do auto-governo democrático e dos direitos individuais. English Abstract: Published in the annals of the of the Brazilian Bar Association XXII annual conference in 2014, this essay offers five principles to guide reform of the Brazilian criminal justice system in order to bring it to the center of the constitutional framework of a country committed to …

Brief Of Amici Curiae -- Heien V. State Of North Carolina, Charles E. Maclean, Adam Lamparello

Adam Lamparello

Reasonable suspicion of unlawful activity cannot be predicated on conduct that does not violate the law. Put differently, if reasonableness — or reasonable suspicion — is to mean anything, it means that apparent violations of the law must be based on actual violations of the law. The North Carolina Supreme Court’s decision sends a message to drivers throughout the country that they cannot be wrong about what the law requires, even where law enforcement is wrong — dead wrong — about what the law proscribes.

The Conversational Consent Search: How “Quick Look” And Other Similar Searches Have Eroded Our Constitutional Rights, Alexander A. Mikhalevsky

Georgia State University Law Review

One area in which law enforcement agencies have stretched constitutional limits concerns the scope of a suspect’s consent to search his or her vehicle. Police forces across the country have tested the limits of consent by asking vague, conversational questions to suspects with the goal of obtaining a suspect’s consent to search, even though that individual may not want to allow the search or may not know that he or she has the right to deny consent.

Conversational phrases like “Can I take a quick look?” or “Can I take a quick look around?” have “emerg[ed] as . . . …

Criminal Court, New York County, People V. Dejesus, Justin Goldberg

Touro Law Review

No abstract provided.

Supreme Court, Bronx County, People V. Buari, Matthew Moisan

Touro Law Review

No abstract provided.

Family Court, Queens County, In Re German F. And Hector R., Angelique Hermanowski

Touro Law Review

No abstract provided.

Supreme Court, Queens County, People V. Tam, Elaine Yang

Touro Law Review

No abstract provided.

The Constitutionality Of The Criminal Organisation Acts In Australia: Where To Now In 2014?, Bradley J. Young

Bradley J Young JD PhD

Efforts to disrupt and limit criminal organisations involved in serious criminal activity as well as directly control members and their associates were introduced in Queensland with the Criminal Organisation Act 2009 (Qld). The purpose for this legislation and the debate over the head of power under which it operates has received much attention and has been again examined this year in the high court case Pompano (2013). The active and applicable laws across a number of states in Australia that can be categorised as control order legislation have proven themselves problematic and still have broader societal application beyond bikie gangs. …

Infusing The Meaning Of “Cruel And Unusual” Through The Digital Public Sphere: How The Internet Can Change The Debate On The Morality Of Capital Punishment, Adam A. Marshall

Adam A Marshall

In this paper, I suggest new strategies that abolitionists should adopt in the debate over the morality of the death penalty. As the Eighth Amendment “draw[s] its meaning from the evolving standards of decency that mark the progress of a maturing society”, advocates for abolishing the death penalty should develop strategies based on the moral theories of Adam Smith to leverage the power of the internet and ensure all citizens feel the effects of the death penalty in order to stimulate debate over its morality. By examining these concepts through the case of Troy Davis, we can see how the …

You Booze, You Bruise, You Lose: Analyzing The Constitutionality Of Florida’S Involuntary Blood Draw Statute In The Wake Of Missouri V. Mcneely, Francisco D. Zornosa

Francisco D Zornosa

No abstract provided.

The Privilege Against Self-Incrimination In Bankruptcy And The Plight Of The Debtor, Timothy R. Tarvin

Timothy R Tarvin

The Evolution Of The Digital Millennium Copyright Act; Changing Interpretations Of The Dmca And Future Implications For Copyright Holders, Hillary A. Henderson

Hillary A Henderson

Copyright law rewards an artificial monopoly to individual authors for their creations. This reward is based on the belief that, by granting authors the exclusive right to reproduce their works, they receive an incentive and means to create, which in turn advances the welfare of the general public by “promoting the progress of science and useful arts.” Copyright protection subsists . . . in original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or …

Paroline, Restitution, And Transferred Scienter: Child Pornography Possessors And Restitution Based On A Commerce-Clause Derived, Aggregate Proximate Cause Theory, Adam Lamparello, Charles Maclean

Adam Lamparello

This Article responds to the Fifth Circuit’s decision in In re Amy Unknown, which is before the United States Supreme Court on granted writ of certiorari. This Article poses a more logical and legal construct, derived from Commerce Clause analysis, that although each individual possessor of child pornography appears to contribute almost imperceptibly to the victim’s harm, the aggregate effect of possession is sufficient to satisfy the causal nexus required for restitution.

Amicus Brief -- Freddie Lee Hall V. State Of Florida, Adam Lamparello, Charles Maclean

Adam Lamparello

IQ cutoffs violate the Constitution. In Atkins v. Virginia, the United States Supreme Court recognized three distinct components to intellectual disability: (1) an intelligence quotient; (2) deficits in adaptive functioning; and (3) onset prior to eighteen. The Florida Supreme Court interpreted Fla. Stat. § 921.137(1) to bar evidence of adaptive disability and early onset if a defendant scored above a 70 on an IQ test. As Justice Perry recognized in his partial dissent, that interpretation will lead to the execution of a retarded man. The Amicus brief argues that the Florida Supreme Court's decision should be reversed because it prohibits …

Back To The Future: Returning To Reasonableness And Particularity Under The Fourth Amendment, Adam Lamparello, Charles Maclean

Adam Lamparello

Issuing one-hundred or fewer opinions per year, the United States Supreme Court cannot keep pace with opinions that match technological advancement. As a result, in Riley v. California and United States v. Wurie, the Court needs to announce a broader principle that protects privacy in the digital age. That principle, what we call “seize but don’t search,” recognizes that the constitutional touchstone for all searches is reasonableness. When do present-day circumstances—the evolution in the Government’s surveillance capabilities, citizens’ phone habits, and the relationship between the NSA and telecom companies—become so thoroughly unlike those considered by the Supreme Court thirty-four years …

Amicus Brief -- Riley V. California And United States V. Wurie, Charles E. Maclean, Adam Lamparello

Adam Lamparello

Warrantless searches of cell phone memory—after a suspect has been arrested, and after law enforcement has seized the phone—would have been unconstitutional at the time the Fourth Amendment was adopted, and are unconstitutional now. Simply stated, they are unreasonable. And reasonableness—not a categorical warrant requirement—is the “touchstone of Fourth Amendment analysis.”

The Rise And Fall Of The Exclusionary Rule, Albert E. Poirier Jr.

Albert E Poirier Jr.

The years between 1913 and 1967 saw a growing tendency on the part of the Supreme Court to allow the submission of evidence that had been gained unlawfully by the police or prosecutors. Since 1961, and particularly during the Rehnquist and Roberts Courts, the rules excluding evidence have steadily diminished. This paper seeks to review the history of the exclusionary rule.

The Criminalization Of Consensual Adult Sex After Lawrence, Richard Broughton

Richard Broughton

Ten years after the Supreme Court’s supposedly momentous decision in Lawrence v. Texas, the case still confounds not merely constitutional law, but the criminal law of sex, as well. This Article seeks to advance the literature on both Lawrence and the criminal law by examining Lawrence’s impact upon sex crimes that involve consensual, private, non-prostitution conduct between adults. It positions Lawrence as a relatively conservative opinion as to sex crimes generally, especially in light of the “Exclusions Paragraph” on page 578 of the Court’s opinion. Still, Lawrence (albeit ambiguously) must protect some form of private, consensual, non-prostitution adult sexuality beyond …

The Criminalization Of Consensual Adult Sex After Lawrence, Richard Broughton

Richard Broughton

Ten years after the Supreme Court’s supposedly momentous decision in Lawrence v. Texas, the case still confounds not merely constitutional law, but the criminal law of sex, as well. This Article seeks to advance the literature on both Lawrence and the criminal law by examining Lawrence’s impact upon sex crimes that involve consensual, private, non-prostitution conduct between adults. It positions Lawrence as a relatively conservative opinion as to sex crimes generally, especially in light of the “Exclusions Paragraph” on page 578 of the Court’s opinion. Still, Lawrence (albeit ambiguously) must protect some form of private, consensual, non-prostitution adult sexuality beyond …

Beyond Paroline: Ensuring Meaningful Remedies For Child Pornography Victims At Home And Abroad, W. Warren H. Binford

W. Warren H. Binford

This article considers how the United States could fulfill its international treaty obligations to support the full restoration of child pornography victims in the aftermath of the recent decision of the United States Supreme Court in Paroline v. United States. The article details how the United States provided leadership historically in creating a skeletal legal framework domestically and internationally to help combat child pornography and restore victims, and highlights how that framework is failing victims on a near-universal basis in an age dominated by technological innovation and globalization. The article proposes the adoption and implementation of effective domestic and international …