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Articles 1 - 11 of 11
Full-Text Articles in Law
Civil, Criminal, Or Mary Jane: Stigma, Legislative Labels, And The Civil Case At The Heart Of Criminal Procedure, W. Ball
W. David Ball
In criminal cases, any fact which increases the maximum punishment must be found by a jury beyond a reasonable doubt. This rule, which comes from Apprendi v. New Jersey, looks to what facts do, not what they are called; in Justice Scalia’s memorable turn of phrase, it applies whether the legislature has labeled operant facts “elements, enhancements, or Mary Jane.” Civil statutes, however, can deprive an individual of her liberty on identical facts without needing to meet the beyond a reasonable doubt standard of proof. If Apprendi is, indeed, functional, why is it limited to formally criminal cases? Why does …
Empowering The Sentencing Commission: A Different Resolution To The Cocaine Sentencing Drama, Kip D. Nelson
Empowering The Sentencing Commission: A Different Resolution To The Cocaine Sentencing Drama, Kip D. Nelson
Kip D Nelson
No abstract provided.
Empowering The Sentencing Commission: A Different Resolution To The Cocaine Sentencing Drama, Kip D. Nelson
Empowering The Sentencing Commission: A Different Resolution To The Cocaine Sentencing Drama, Kip D. Nelson
Kip D Nelson
No abstract provided.
Empowering The Sentencing Commission: A Different Resolution To The Cocaine Sentencing Drama, Kip D. Nelson
Empowering The Sentencing Commission: A Different Resolution To The Cocaine Sentencing Drama, Kip D. Nelson
Kip D Nelson
No abstract provided.
A Good Time With The Sixth Amendment: The Application Of Apprendi To The Denial Of Good Time Credit, Nicholas J. Xenakis
A Good Time With The Sixth Amendment: The Application Of Apprendi To The Denial Of Good Time Credit, Nicholas J. Xenakis
Nicholas J Xenakis
This Article is about a unique aberration in post-Blakely sentencing jurisprudence. It explains why the Due Process the Sixth Amendment guarantees as articulated in Apprendi v. New Jersey apply to some factual determinations related to the denial of good time credit. At first glance, this is something that should not be. Denials of good time credit are typically evaluated under a ‘some evidence’ standard, and juries normally play no role in such denials since they usually take place post-conviction. Nonetheless, Apprendi does indeed apply to some factual determinations related to the pre-trial behavior of the defendant while incarcerated. In states …
Inter-Judge Sentencing Disparity After Booker: A First Look, Ryan W. Scott
Inter-Judge Sentencing Disparity After Booker: A First Look, Ryan W. Scott
Ryan W. Scott
A central purpose of the Sentencing Reform Act was to reduce inter-judge sentencing disparity, driven not by legitimate differences between offenders and offense conduct, but by the philosophy, politics, or biases of the sentencing judge. The federal Sentencing Guidelines, despite their well-recognized deficiencies, succeeded in reducing that form of unwarranted disparity. But in a series of decisions from 2005 to 2007, the Supreme Court rendered the Guidelines advisory (Booker), set a highly deferential standard for appellate review (Gall), and explicitly authorized judges to reject the policy judgments of the Sentencing Commission (Kimbrough). Since then, the Commission has received extensive anecdotal …
Sentencing Paris, Jodie O'Leary
Sentencing Paris, Jodie O'Leary
Jodie O'Leary
Extract: For a number of years now punishing Paris Hilton may have been on the mind of many a person for different reasons. She is guilty of crimes against fashion some would say. Cries of cruelty to animals could also be heard for, among other things, dressing her Chihuahua Tinkerbell in pink Chanel. Parents scorned her as a bad role model for their children.
Graham V. Florida: Justice Kennedy's Vision Of Childhood And The Role Of Judges, Tamar R. Birckhead
Graham V. Florida: Justice Kennedy's Vision Of Childhood And The Role Of Judges, Tamar R. Birckhead
Tamar R Birckhead
This short essay examines Graham v. Florida, the United States Supreme Court decision holding that the Eighth Amendment’s Cruel and Unusual Punishments Clause does not permit a juvenile offender to be sentenced to life in prison without parole for a nonhomicide crime. This essay argues that Justice Anthony Kennedy’s majority opinion is grounded not only in Roper v. Simmons, which invalidated the death penalty for juvenile offenders on Eighth Amendment grounds, and Kennedy v. Louisiana, which held that the Eighth Amendment prohibited the death penalty for the offense of rape of a child, but also in Establishment Clause cases set …
Death, Ineligibility And Habeas Corpus, Lee B. Kovarsky
Death, Ineligibility And Habeas Corpus, Lee B. Kovarsky
Lee Kovarsky
I examine the interaction between what I call 'death ineligibility' challenges and the habeas writ. A death ineligibility claim alleges that a criminally-confined capital prisoner belongs to a category of offenders for which the Eighth Amendment forbids execution. By contrast, a 'crime innocence' claim alleges that, colloquially speaking, a capital prisoner 'wasn’t there, and didn’t do it.' In the last eight years, the Supreme Court has identified several new ineligibility categories, including mentally retarded offenders. Configured primarily to address crime innocence and procedural challenges, however, modern habeas law is poorly equipped to accommodate ineligibility claims. Death Ineligibility traces the genesis …
Criminal Forfeiture Procedure In 2010: An Annual Survey Of Developments In The Case Law, Stefan D. Cassella
Criminal Forfeiture Procedure In 2010: An Annual Survey Of Developments In The Case Law, Stefan D. Cassella
Stefan D Cassella
This article is the latest in a series of annual surveys of developments in the case law regarding federal criminal forfeiture procedure. It covers cases decided in 2009 and changes to Rule 32.2 of the Federal Rules of Criminal Procedure that took effect in 2009.
Determination Of Starting Sentences In Israel—System And Application, Oren Gazal-Ayal, Ruth Kannai
Determination Of Starting Sentences In Israel—System And Application, Oren Gazal-Ayal, Ruth Kannai
Oren Gazal-Ayal
The Israeli Penal Law Bill (Amendment No. 92, Structuring Judicial Discretion in Sentencing) 5766-2006 proposes that a committee be set up to establish sentences that will serve as starting points for judges in their sentencing deliberation (starting sentences). The Israeli Minister of Justice asked the authors to propose starting sentences for three prevalent serious offences in order to show the Knesset (the Israeli parliament) the methodology of determining such starting sentences and to help facilitate the debate about the consequences of these new guidelines. The ministers intended the Knesset to legislate these proposed starting sentences in the appendix to the …