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Full-Text Articles in Criminal Law

Tasing The Constitution: Conducted Electrical Weapons, Other Forceful Arrest Means, And The Validity Of Subsequent Constitutional Rights Waivers, Andreas Kuersten Jul 2020

Tasing The Constitution: Conducted Electrical Weapons, Other Forceful Arrest Means, And The Validity Of Subsequent Constitutional Rights Waivers, Andreas Kuersten

William & Mary Bill of Rights Journal

Conducted electrical weapons (CEWs)—the most famous and widely used of which are offered under the TASER brand—are ubiquitous tools of law enforcement, carried by the vast majority of law enforcement officers and routinely deployed. These devices subdue targets by coursing electric current through their bodies, thereby causing individuals to collapse as their muscles involuntarily contract. Yet this method of operation has raised concerns—voiced by researchers, advocates, and criminal defendants alike—that CEWs influence cognitive capacity in addition to muscle function as electric current potentially transits through the brain via the central nervous system. In the context of an arrest, this implicates …


Kidnapping Reconsidered: Courts Merger Tests Inadequately Remedy The Inequities Which Developed From Kidnapping's Sensationalized And Racialized History, Samuel P. Newton Jun 2020

Kidnapping Reconsidered: Courts Merger Tests Inadequately Remedy The Inequities Which Developed From Kidnapping's Sensationalized And Racialized History, Samuel P. Newton

William & Mary Bill of Rights Journal

No abstract provided.


Epilogue: From Too Tall To Trim And Small, Mark A. Drumbl Mar 2019

Epilogue: From Too Tall To Trim And Small, Mark A. Drumbl

William & Mary Bill of Rights Journal

No abstract provided.


Two Models For Amending The 'Fleeing Felon' Rule, Cynthia V. Ward Jan 2019

Two Models For Amending The 'Fleeing Felon' Rule, Cynthia V. Ward

Faculty Publications

The so-called “fleeing felon” rule instructs courts and law-enforcement personnel about whether, and when, police may use deadly force to stop a suspect who is attempting to escape arrest. At common law, police were allowed to use deadly force when necessary to prevent the escape of a fleeing felon, even if the escapee did not present an imminent threat of violence to the officers or others. By contrast, the right of private citizens to use deadly force against another person is generally restricted to situations involving self-defense—where an innocent person reasonably believes she is facing an imminent threat of death …


The Hard Truth About The Penile Plethysmograph: Gender Disparity And The Untenable Standard In The Fourth Circuit, Lindsay Blumberg Mar 2018

The Hard Truth About The Penile Plethysmograph: Gender Disparity And The Untenable Standard In The Fourth Circuit, Lindsay Blumberg

William & Mary Journal of Race, Gender, and Social Justice

No abstract provided.


Combating Thieves Of Valor: The Stolen Valor Act Of 2013 Is Constitutional Yet Unenforced, Mary E. Johnston May 2017

Combating Thieves Of Valor: The Stolen Valor Act Of 2013 Is Constitutional Yet Unenforced, Mary E. Johnston

William & Mary Bill of Rights Journal

No abstract provided.


To Kill Or Not To Kill: (When) That Is The Question? A Legislative Treatise On Battered Israeli Women Facing A Dead End Road, Hava Dayan Jan 2017

To Kill Or Not To Kill: (When) That Is The Question? A Legislative Treatise On Battered Israeli Women Facing A Dead End Road, Hava Dayan

William & Mary Journal of Race, Gender, and Social Justice

This Paper seeks to examine the legal framework in which the self-defense exception is applied in Israel in circumstances of domestic violence. The Paper scrutinizes the issue with reference to recent amendments to the Israeli Penal Code pertaining to the ‘castledefense’ which grants a person defending his home and property-wide protection from criminal liability. In light of these amendments, the lack of legislative harmony between the exception to criminal liability applied when defending property and the deficient protection afforded to victims of ongoing, severe domestic violence, is striking. Aside from a critical review of Israeli legislation on the issue, this …


Warning: Stop-And-Frisk May Be Hazardous To Your Health, Josephine Ross Dec 2016

Warning: Stop-And-Frisk May Be Hazardous To Your Health, Josephine Ross

William & Mary Bill of Rights Journal

No abstract provided.


The Flawed Reasoning Behind Johnson V. United States And A Solution: Why A Facts-Based Approach Should Have Been Used To Interpret The Residual Clause Of The Armed Career Criminal Act, Jake Albert Dec 2016

The Flawed Reasoning Behind Johnson V. United States And A Solution: Why A Facts-Based Approach Should Have Been Used To Interpret The Residual Clause Of The Armed Career Criminal Act, Jake Albert

William & Mary Bill of Rights Journal

No abstract provided.


Section 4: Criminal, Institute Of Bill Of Rights Law, William & Mary Law School Sep 2016

Section 4: Criminal, Institute Of Bill Of Rights Law, William & Mary Law School

Supreme Court Preview

No abstract provided.


Sex Offender Residency Restrictions: Government Regulation Of Public Health, Safety, And Morality, John Kip Cornwell Oct 2015

Sex Offender Residency Restrictions: Government Regulation Of Public Health, Safety, And Morality, John Kip Cornwell

William & Mary Bill of Rights Journal

Sex offender residency restrictions have proliferated throughout the United States over the past decade. A number of commentators have likened these laws to medieval banishment, when political outcasts and undesirables are exiled to remote areas where they cannot threaten civilized society. This Article argues first that likening modern residency restrictions to “banishment” largely misconstrues this practice as it has been practiced historically. Instead, these statutory initiatives are better understood as an assertion of governments’ police power to protect public health, safety, and morality. Seen through this lens, this Article evaluates the laws’ constitutional sufficiency with attention to their allegedly punitive …


Section 6: Criminal, Institute Of Bill Of Rights Law, William & Mary Law School Sep 2015

Section 6: Criminal, Institute Of Bill Of Rights Law, William & Mary Law School

Supreme Court Preview

No abstract provided.


Solving Batson, Tania Tetlow Apr 2015

Solving Batson, Tania Tetlow

William & Mary Law Review

The Supreme Court faced an important ideological choice when it banned the racial use of peremptory challenges in Batson v. Kentucky. The Court could either ground the rule in equality rights designed to protect potential jurors from stereotyping, or it could base the rule on the defendant’s Sixth Amendment right to an “impartial jury” drawn from a “fair cross-section of the community.” By choosing the equal protection analysis, the Court turned away from the defendant and the fair functioning of the criminal justice system, and instead focused on protecting potential jurors. In doing so, the Court built a fatal error …


The Daryl Atkins Story, Mark E. Olive Dec 2014

The Daryl Atkins Story, Mark E. Olive

William & Mary Bill of Rights Journal

No abstract provided.


The True Legacy Of Atkins And Roper: The Unreliability Principle, Mentally Ill Defendants, And The Death Penalty’S Unraveling, Scott E. Sundby Dec 2014

The True Legacy Of Atkins And Roper: The Unreliability Principle, Mentally Ill Defendants, And The Death Penalty’S Unraveling, Scott E. Sundby

William & Mary Bill of Rights Journal

In striking down the death penalty for intellectually disabled and juvenile defendants, Atkins v. Virginia and Roper v. Simmons have been understandably heralded as important holdings under the Court’s Eighth Amendment jurisprudence that has found the death penalty “disproportional” for certain types of defendants and crimes. This Article argues, however, that the cases have a far more revolutionary reach than their conventional understanding. In both cases the Court went one step beyond its usual two-step analysis of assessing whether imposing the death penalty violated “evolving standards of decency.” This extra step looked at why even though intellectual disability and youth …


A Tale Of Two (And Possibly Three) Atkins: Intellectual Disability And Capital Punishment Twelve Years After The Supreme Court’S Creation Of A Categorical Bar, John H. Blume, Sheri Lynn Johnson, Paul Marcus, Emily Paavola Dec 2014

A Tale Of Two (And Possibly Three) Atkins: Intellectual Disability And Capital Punishment Twelve Years After The Supreme Court’S Creation Of A Categorical Bar, John H. Blume, Sheri Lynn Johnson, Paul Marcus, Emily Paavola

William & Mary Bill of Rights Journal

No abstract provided.


Scientizing Culpability: The Implications Of Hall V. Florida And The Possibility Of A “Scientific Stare Decisis”, Christopher Slobogin Dec 2014

Scientizing Culpability: The Implications Of Hall V. Florida And The Possibility Of A “Scientific Stare Decisis”, Christopher Slobogin

William & Mary Bill of Rights Journal

The Supreme Court’s decision in Hall v. Florida held that “clinical definitions” control the meaning of intellectual disability in the death penalty context. In other words, Hall “scientized” the definition of a legal concept. This Article discusses the implications of this unprecedented move. It also introduces the idea of scientific stare decisis—a requirement that groups that are scientifically alike be treated similarly for culpability purposes—as a means of implementing the scientization process.


Challenges Of Conveying Intellectual Disabilities To Judge And Jury, Caroline Everington Dec 2014

Challenges Of Conveying Intellectual Disabilities To Judge And Jury, Caroline Everington

William & Mary Bill of Rights Journal

No abstract provided.


Does Atkins Make A Difference In Non-Capital Cases? Should It?, Paul Marcus Dec 2014

Does Atkins Make A Difference In Non-Capital Cases? Should It?, Paul Marcus

William & Mary Bill of Rights Journal

No abstract provided.


Hall V. Florida: The Supreme Court’S Guidance In Implementing Atkins, James W. Ellis Dec 2014

Hall V. Florida: The Supreme Court’S Guidance In Implementing Atkins, James W. Ellis

William & Mary Bill of Rights Journal

No abstract provided.


The Inverse Relationship Between The Constitutionality And Effectiveness Of New York City "Stop And Frisk", Jeffrey Bellin Oct 2014

The Inverse Relationship Between The Constitutionality And Effectiveness Of New York City "Stop And Frisk", Jeffrey Bellin

Faculty Publications

New York City sits at the epicenter of an extraordinary criminal justice phenomenon. While employing aggressive policing tactics, such as “stop and frisk,” on an unprecedented scale, the City dramatically reduced both violent crime and incarceration – with the connections between these developments (if any) hotly disputed. Further clouding the picture, in August 2013, a federal district court ruled the City’s heavy reliance on “stop and frisk” unconstitutional. Popular and academic commentary generally highlights isolated pieces of this complex story, constructing an incomplete vision of the lessons to be drawn from the New York experience. This Article brings together all …


Why Arizona V. Gant Is The Wrong Solution To The Warrantless Cell Phone Search Problem, Adam M. Gershowitz Apr 2014

Why Arizona V. Gant Is The Wrong Solution To The Warrantless Cell Phone Search Problem, Adam M. Gershowitz

Faculty Publications

No abstract provided.


What Matters More: A Day In Jail Or A Criminal Conviction?, John P. Gross Oct 2013

What Matters More: A Day In Jail Or A Criminal Conviction?, John P. Gross

William & Mary Bill of Rights Journal

No abstract provided.


Remarks Of William Van Alstyne On The Brandenburg Panel, William W. Van Alstyne Oct 2011

Remarks Of William Van Alstyne On The Brandenburg Panel, William W. Van Alstyne

Faculty Publications

No abstract provided.


Contingent Constitutionalism: State And Local Criminal Laws And The Applicability Of Federal Constitutional Rights, Wayne A. Logan Oct 2009

Contingent Constitutionalism: State And Local Criminal Laws And The Applicability Of Federal Constitutional Rights, Wayne A. Logan

William & Mary Law Review

Americans have long been bound by a shared sense of constitutional commonality, and the Supreme Court has repeatedly condemned the notion that federal constitutional rights should be allowed to depend on distinct state and local legal norms. In reality, however, federal rights do indeed vary, and they do so as a result of their contingent relationship to the diversity of state and local laws on which they rely. Focusing on criminal procedure rights in particular, this Article examines the benefits and detriments of constitutional contingency, and casts in new light many enduring understandings of American constitutionalism, including the effects of …


Protecting Our Children And The Constitution: An Analysis Of The "Virtual" Child Pornography Provisions Of The Protect Act Of 2003, James Nicholas Kornegay Apr 2006

Protecting Our Children And The Constitution: An Analysis Of The "Virtual" Child Pornography Provisions Of The Protect Act Of 2003, James Nicholas Kornegay

William & Mary Law Review

No abstract provided.


Use Of The Drug Pavulon In Lethal Injections: Cruel And Unusual, Casey Lynne Ewart Feb 2006

Use Of The Drug Pavulon In Lethal Injections: Cruel And Unusual, Casey Lynne Ewart

William & Mary Bill of Rights Journal

No abstract provided.


Cleaning Up The Eighth Amendment Mess, Tom Stacy Dec 2005

Cleaning Up The Eighth Amendment Mess, Tom Stacy

William & Mary Bill of Rights Journal

This article criticizes the Court's interpretation of the Eighth Amendment's Cruel and Unusual Punishment Clause and offers its own understanding. The Court's jurisprudence is plagued by deep inconsistencies concerning the Amendment's text, the Court's own role, and a constitutional requirement of proportionate punishment. In search of ways to redress these fundamental shortcomings, the article explores three alternative interpretations of the Clause: (1) a textualist approach; (2) Justice Scalia's understanding that the Clause forbids only punishments unacceptable for all offenses; and (3) a majoritarian approach that would consistently define cruel and unusual punishment in terms of legislative judgments and penal custom. …


Restrictions On Law Enforcement Investigation And Prosecution Of Crime, Paul Marcus Jan 1996

Restrictions On Law Enforcement Investigation And Prosecution Of Crime, Paul Marcus

Faculty Publications

No abstract provided.


The Due Process Defense In Entrapment Cases, The Journey Back, Paul Marcus Jan 1990

The Due Process Defense In Entrapment Cases, The Journey Back, Paul Marcus

Faculty Publications

No abstract provided.