Law Commons^™

A 'Velvet Hammer': The Criminalization Of Motherhood And The New Maternalism, Eliza Duggan

Eliza Duggan

In 2014, Tennessee became the first state to criminalize the use of narcotics during pregnancy. While women have been prosecuted for the outcomes of their pregnancies and for the use of drugs during pregnancy in the past decades, Tennessee is the first state to explicitly authorize prosecutors to bring criminal charges against pregnant women if they use drugs. This Article suggests that this new maternal crime is reflective of a social and political paradigm called “maternalism,” which enforces the idea that women are meant to be mothers and to perform motherhood in a particular fashion. This concept has developed from …

Modifying Unjust Sentences, E. Lea Johnston

E. Lea Johnston

The United States is in the midst of an incarceration crisis. Over-incarceration is depleting state budgets and decimating communities. It has also led to the overfilling of prisons, which has degraded conditions of confinement, increased violence, and reduced access to needed medical and mental health care. Judicial sentence modification offers a means to address both the phenomenon of over-incarceration and harsh prison conditions that threaten unjust punishment. Indeed, some legislatures have framed states’ early release provisions as fulfilling goals of proportionality and just punishment. Proportionality is also an express purpose of the proposed Model Penal Code provisions on judicial sentence …

Dying To Appeal: The Long-Lasting And Ineffective Appeal Process Of The Death Sentence, Marlene Brito

Marlene Brito

The appeal process for death sentences in Florida must be revised to correct the ineffectiveness that is currently in place. The long-lasting procedure allows inmates to indefinitely delay their execution and live via the appeal process for over fifteen years because the statute does not provide a definite time limit. The comment discusses the death penalty in the United States, the jury override law and its consequences, the appeal process itself, and proposes an amendment to section 921.141, Florida Statutes.

The High Price Of Poverty: A Study Of How The Majority Of Current Court System Procedures For Collecting Court Costs And Fees, As Well As Fines, Have Failed To Adhere To Established Precedent And The Constitutional Guarantees They Advocate., Trevor J. Calligan

Trevor J Calligan

No abstract provided.

Designing Trial Avoidance Procedures For Post-Conflict, Civil Law Countries: Is German Absprachen An Appropriate Model For Efficient Criminal Justice In Afghanistan?, Nasiruddin Nezaami

Nasiruddin Nezaami

In Afghanistan, overflow of court dockets and lengthy trials persist despite recent reforms effected through a new Criminal Procedure Code. The new Code has solved some of the problems that existed prior to its ratification; however, it has failed to establish adequate trial avoidance procedures. This problem is further compounded by the dissatisfaction of parties with trial outcomes. This article suggests that Afghanistan could address both issues by adopting a mechanism similar to German Absprachen as an appropriate case disposing procedure, enabling party consensus, helping courts decrease their dockets, and reducing the length of trials. This analysis is not only …

Do We Know How To Punish?, Benjamin L. Apt

Benjamin L. Apt

A number of current theories attempt to explain the purpose and need for criminal punishment. All of them depend on some sort of normative basis in justifying why the state may penalize people found guilty of crimes. Yet each of these theories lacks an epistemological foundation; none of them explains how we can know what form punishments should take. The article analyses the epistemological gaps in the predominant theories of punishment: retributivism, including limited-retributivism; and consequentialism in its various versions, ranging from deterrence to the reparative theories such as restorative justice and rehabilitation. It demonstrates that the common putative epistemological …

The Hypocrisy Of "Equal But Separate" In The Courtroom: A Lens For The Civil Rights Era, Jaimie K. Mcfarlin

Jaimie K. McFarlin

This article serves to examine the role of the courthouse during the Jim Crow Era and the early stages of the Civil Rights Movement, as courthouses fulfilled their dual function of minstreling Plessy’s call for “equality under the law” and orchestrating overt segregation.

Can An Oil Pit Take A Bird?: Why The Migratory Bird Treaty Act Should Apply To Inadvertent Takings And Killings By Oil Pits, Monica B. Carusello

Monica B Carusello

No abstract provided.

In Case Of Confession, Andrea Lyon

Andrea D. Lyon

No abstract provided.

Equal Access To Evidence: The Case For The Defense Use Of Immunity For Essential Witnesses, Andrea Lyon

Andrea D. Lyon

No abstract provided.

The Preliminary Hearing: A Necessary Part Of Due Process, Andrea Lyon

Andrea D. Lyon

No abstract provided.

0n Executing Treatment-Resistant Schizophrenics: Identity And The Construction Of “Synthetic” Competency, Theodore Y. Blumoff

Theodore Y. Blumoff

Since 2003, death penalty jurisdictions have been permitted to use psychotropic drugs to “restore” the competency of schizophrenics so they can execute them. Exactly why it is permissible to execute a “synthetically” or “artificially” competent individual is unclear in light of Ford v. Wainwright, a 1986 decision in which the United States Supreme Court, following ancient custom and common law rule, held that the cruel and unusual prohibition of the Eighth Amendment prohibited execution of the insane. The lack of clarity follows from the inability of the Court to agree on the reason the tradition persists. Nonetheless, health care providers …

The Not So Great Writ: Constitution Lite For State Prisoners, Ursula Bentele

Ursula Bentele

Examination of the universe of cases in which the Supreme Court has recently reversed grants of federal habeas relief by circuit courts by issuing summary, per curiam opinions reveals some disturbing patterns. Substantively, the opinions continue the Court’s narrow interpretation of what law has been so clearly established that state courts must abide by its constitutional principles. Moreover, any rejection of a constitutional claim must be upheld unless there is no possibility that fairminded jurists could disagree with that determination. In terms of process, the summary reversals are issued in response to petitions for review by wardens, when the petitioners …

Jones, Lackey, And Teague, Richard Broughton

Richard Broughton

In a recent, high-profile ruling, a federal court finally recognized that a substantial delay in executing a death row inmate violated the Eighth Amendment’s ban on cruel and unusual punishments. Courts have repeatedly rejected these so-called “Lackey claims,” making the federal court’s decision in Jones v. Chappell all the more important. And yet it was deeply flawed. This paper focuses on one of the major flaws in the Jones decision that largely escaped attention: the application of the non-retroactivity rule from Teague v. Lane. By comprehensively addressing the merits of the Teague bar as applied to Lackey claims, and making …

Statute Of The International Criminal Court Is Complementary To National Criminal Laws, Mamoun Mohammad Abuzeitoun Dr.

Mamoun Mohammad Abuzeitoun Dr.

Abstract The Charter of the International Criminal Court supplements national laws in respect of serious criminal crimes. This is underlined by articles 1 and 17 of the Charter. Yet, the practice of the ICC shows that international crimes may be prosecuted in certain cases while other cases are excluded on the ground that the conditions for legal prosecution under the Charter are not satisfied. Hence, a question arises as to whether the Charter constitutes an objective and actual supplement to national laws or a possible supplement depending on international economic and political relations.

Drag Racing, Assumption Of Risk, And Homicide, Roni M. Rosenberg

Roni M Rosenberg

U.S. courts are divided with regard to the question of whether it is appropriate to convict a participant in a drag race of homicide for the death of another participant. The context is not one in which decedent is killed as a result of colliding with the defendant; rather the death is cause by a collision with a third party or a guard rail. The controversy revolves around on central question: whether there is a causal connection between defendant's participation in the race and the death of decedent. Courts that convict of manslaughter hold that such a causal connection exists, …

One Small Problem With Administrative Driver’S License Suspension Laws: They Don’T Reduce Drunken Driving, Steve R. Darnell

Steve R Darnell

Only eight states continue to rely on the judicial system to suspend a drunken driver’s license instead of an administrative process. Federal agencies and special interest groups such as Mothers Against Drunk Driving (MADD) and the Insurance Institute for Highway Safety press for Administrative License Suspension (ALS) laws arguing these laws reduce drunken driving. While some research supports this view, there is an equally and more compelling literature indicating ALS laws are not effective in reducing drunken driving. This study analyzed data from eight states that have adopted ALS laws to determine if the ALS laws reduced drunken driving. A …

Sentencing Pregnant Drug Addicts: Why The Child Endangerment Enhancement Is Not Appropriate, Monica Carusello

Monica B Carusello

No abstract provided.

There Goes The Neighborhood: Florida's Crackdown On Adverse Possession In The Wake Of The Foreclosure Crisis, Phillip V. Urban

Phillip V Urban

An examination of the creative use of adverse possession in Florida following the foreclosure crisis, and the State's heavy-handed reaction to the practice.

Taking Another Look At Second-Look Sentencing, Meghan J. Ryan

Meghan J. Ryan

An unprecedented number of Americans are currently behind bars. Our high rate of incarceration, and the high bills that it generates for American taxpayers, has led to a number of proposals for sentencing reform. For example, a bill recently introduced in Congress would roll back federal mandatory minimum sentences for certain drug offenders, and the Obama Administration has announced a plan to grant clemency to hundreds of non-violent drug offenders. Perhaps the most revolutionary proposal, though, is one advanced by the drafters of the Model Penal Code, namely that judges be given the power to resentence offenders who have been …

Believe It Or Not: Mitigating The Negative Effects Personal Belief And Bias Have On The Criminal Justice System, Sarah Mourer

Sarah Mourer

This article examines the prosecutor’s and defense attorney’s personal pre-trial beliefs regarding the accused’s guilt or innocence. This analysis suggests that when an attorney does hold pretrial beliefs, such beliefs lead to avoidable bias and errors. These biases may alter the findings throughout all stages of the case. The procedure asking that the prosecution seek justice while having nothing more than probable cause results in the prosecutor’s need to have a belief in guilt before proceeding to trial. While this belief is intended to foster integrity and fairness in the criminal justice system, to the contrary, it actually contributes to …

Crime And Punishment, A Global Concern: Who Does It Best And Does Isolation Really Work?, Melanie M. Reid

Melanie M. Reid

Thinking Globally, Policy Locally: A Plan For Decentralized Law Enforcement In Côte D’Ivoire, __ J. Of Int’L Bus. & L. __ (Forthcoming 2015), Hugh Mundy

Hugh Mundy

During a 2009 speech in Ghana, President Barack Obama said, “Africa doesn’t need strongmen. It needs strong institutions.” Obama credited Ghana’s “impressive rates of growth” to the country’s “repeated peaceful transfers of power even in the wake of closely contested elections.” Free elections and non-violent power transfers, he said, “may lack the drama of the twentieth century’s liberation struggles” but “will ultimately be more significant.” Last July, the president expressed similar sentiments during a highly anticipated trip to Kenya. Côte d’Ivoire offers a stark example of the instability wrought when an unseated leader refuses to cede power. Once hailed as …

The Theatre Of Punishment: Case Studies In The Political Function Of Corporal And Capital Punishment, Bryan H. Druzin

Bryan H. Druzin

Criminal Forfeiture Procedure In 2015: An Annual Survey Of Developments In The Case Law, Stefan D. Cassella

Stefan D Cassella

This is another in a series of articles on developments in the federal case law relating to criminal forfeiture procedure. It covers the cases decided in 2014 and early 2015.

Like the earlier articles in this series, this one does not attempt to address every topic related to criminal forfeiture, nor all of the exceptions and nuances that apply to the topics that are addressed; rather, it covers only those matters on which there was a significant development in the case law in the past year. Thus a basic familiarity with federal criminal forfeiture procedure is assumed.

The Article begins …