Back To The Future: The Constitution Requires Reasonableness And Particularity—Introducing The “Seize But Don’T Search” Doctrine, Adam Lamparello, Charles E. Maclean
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 ...
Scoppola V. Italy (No. 3): The Uncertain Progress Of Prisoner Voting Rights In Europe, 2014 Boston College Law School
Scoppola V. Italy (No. 3): The Uncertain Progress Of Prisoner Voting Rights In Europe, Javier R. Jaramillo
Boston College International and Comparative Law Review
This Comment examines European disenfranchisement of prisoners in light of the European Convention on Human Rights, which guarantees a right to free elections through Article 3 of Protocol No. 1. While many European states continue the longstanding practice of denying wrongdoers the right to vote, at least under certain circumstances, this practice has come under increasing criticism over the last several decades. In recent years, the European Court of Human Rights (ECtHR) has decided several cases addressing this issue, but these decisions have failed to clarify under what circumstances it is permissible for a state to deny prisoners, and former ...
In Search Of Effective Ethics & Compliance Programs, 2014 University of Tennessee, Knoxville
In Search Of Effective Ethics & Compliance Programs, Maurice E. Stucke
Maurice E Stucke
The U.S. Sentencing Commission’s Organizational Guidelines for over twenty years have offered firms a significant financial incentive to develop an ethical organizational culture. Nonetheless, corporate crime persists. Too many ethics programs remain ineffective. As this Article explores, the Guidelines' current approach is not working. The evidence, including sentencing data over the past twenty years, reveals that few firms have effective ethics and compliance programs. Nor is there much hope that the Guidelines' incentive will induce companies, after the economic crisis, to become more ethical. The problem is not attributable to three assumptions underlying the Guidelines. The empirical research ...
“Friend To The Martyr, A Friend To The Woman Of Shame”: Thinking About The Law, Shame And Humiliation, Michael L. Perlin, Naomi Weinstein
Michael L Perlin
The need to pay attention to the law‘s capacity to allow for, to encourage, or (in some cases) to remediate humiliation, or humiliating or shaming behavior has increased exponentially as we begin to also take more seriously international human rights mandates, especially – although certainly not exclusively – in the context of the recently-ratified United Nations Convention on the Rights of Persons with Disabilities, a Convention that calls for “respect for inherent dignity,” and characterizes "discrimination against any person on the basis of disability [as] a violation of the inherent dignity and worth of the human person...."
Humiliation and shaming, as ...
A Step In The Wrong Direction: The Ninth Circuit Requires Reasonable Suspicion For Forensic Examinations Of Electronic Storage Devices During Border Searches In United States V. Cotterman, 2014 Boston College Law School
A Step In The Wrong Direction: The Ninth Circuit Requires Reasonable Suspicion For Forensic Examinations Of Electronic Storage Devices During Border Searches In United States V. Cotterman, Michael Creta
Boston College Law Review
On March 8, 2013, in United States v. Cotterman, the U.S. Court of Appeals for the Ninth Circuit—sitting en banc—held that U.S. border agents must have a reasonable suspicion of criminal activity before conducting a forensic search of an electronic storage device at the border. In reaching this conclusion, the court narrowed existing federal appeals court precedents, which held that manual searches of electronic storage devices do not require any suspicion. This Comment argues that a reasonable suspicion requirement is illogical, harmful to national security, and administratively impractical. Instead, strengthening existing federal regulations is a better ...
The Search For A Limited Search: The First Circuit Denies The Search Of Cell Phones Incident To Arrest In United States V. Wurie, 2014 Boston College Law School
The Search For A Limited Search: The First Circuit Denies The Search Of Cell Phones Incident To Arrest In United States V. Wurie, Evan O'Connor
Boston College Law Review
On May 17, 2013, the U.S. Court of Appeals for the First Circuit in United States v. Wurie held that the warrantless search of a cell phone was not justified by the search-incident-to-arrest exception to the Fourth Amendment and was thus an illegal search. In doing so, the court declined to agree with other federal appeals court solutions regarding this issue; most notably, the Fifth Circuit’s 2007 decision in United States v. Finley and the Seventh Circuit’s 2012 decision in United States v. Flores-Lopez. This Comment argues that the approaches taken by courts on both sides of ...
A Murky Doctrine Gets A Little Pushback: The Fourth Circuit's Rebuff Of Guilty Pleas In United States V. Fisher, 2014 Boston College Law School
A Murky Doctrine Gets A Little Pushback: The Fourth Circuit's Rebuff Of Guilty Pleas In United States V. Fisher, Eric Hawkins
Boston College Law Review
On April 1, 2013, in United States v. Fisher, the U.S. Court of Appeals for the Fourth Circuit vacated a defendant’s guilty plea post-sentencing because of an officer’s impermissible conduct during the preceding investigation. In doing so, the court expanded on the “voluntariness” prerequisite outlined in the seminal 1970 U.S. Supreme Court case of Brady v. United States that governs the guilty plea process in federal court. This Comment argues that this was a prudent expansion given the troubling nature of guilty pleas in general. This Comment outlines the basic contours of guilty pleas in the ...
Just Grow Up Already: The Diminished Culpability Of Juvenile Gang Members After Miller V. Alabama, 2014 Boston College Law School
Just Grow Up Already: The Diminished Culpability Of Juvenile Gang Members After Miller V. Alabama, Sarah A. Kellogg
Boston College Law Review
In Miller v. Alabama, the U.S. Supreme Court held that statutes imposing mandatory sentences of life without parole on juvenile offenders violate the Eighth Amendment. In doing so, the Court applied the Eighth Amendment analysis normally reserved to review capital sentences. The extension of this analysis to a term-of-years sentence rested on the Court’s recognition of developmental differences that make juveniles categorically less culpable than adults. This Note argues that based on Miller, statutory provisions that impose lengthy sentence enhancements on juveniles who commit gang-related crimes, such as those found in California’s STEP Act, should also be ...
The Governance Of Military Police In Canada, 2014 Osgoode Hall Law School of York University
The Governance Of Military Police In Canada, Andrew Halpenny
Osgoode Hall Law Journal
The Military Police is a special federal police force in Canada with unique authority, designed to support military commanders both in operations and in garrison. However, it has historically been under the command of non-Military Police officers, and is consequently not governed like other police forces in Canada. Part of this arrangement can be explained by its special military duties, but much of it is the result of a tradition that is at odds with current societal norms. It is the position of the author that differences in norms between the Military Police and other Canadian police forces can only ...
Police Independence And The Military Police, 2014 Osgoode Hall Law School of York University
Police Independence And The Military Police, Kent Roach
Osgoode Hall Law Journal
This article examines police independence in the context of the military police. The author concludes that the independence of the military police to investigate both Criminal Code and Code of Service Discipline offences should be recognized as part of the unwritten constitutional principle associated with the rule of law and as a principle of fundamental justice under section 7 of the Charter. The author examines the increased recognition of the importance of police investigative independence since the Somalia Inquiry, including the recent expansion of the command authority of the Canadian Forces Provost Marshal over all military police. The relation between ...
Prisons And Disasters, 2014 Northeastern University
Prisons And Disasters, Melissa Anne Savilonis
Law and Policy Doctoral Theses
Prisons are not prepared to respond to and recover from disasters. Prisoners are a vulnerable subset of our population, often underrepresented, poor, or a member of a marginalized group. Prisoners require protection during disasters, as they do not have the capability or freedom to make independent decisions to protect themselves. However, they seem to be a forgotten subset of our population when it comes to emergency management. In fact, pets have received far superior treatment and care than prisoners during disasters. With the majority of prisons across the country facing limited funding, staffing shortages, and a lack of resources, emergency ...
Review For Release: Juvenile Offenders, State Parole Practices, And The Eighth Amendment, 2014 Maurer School of Law: Indiana University
Review For Release: Juvenile Offenders, State Parole Practices, And The Eighth Amendment, Sarah F. Russell
Indiana Law Journal
State parole boards have historically operated free from constitutional constraints when making decisions about whether to release prisoners. Recent Supreme Court decisions subject states to a new constitutional requirement to provide a “meaningful opportunity to obtain release” for at least some categories of juvenile offenders. Using original data collected through a survey, this Article provides the first comprehensive description of existing parole board release procedures nationwide and explores whether these practices comply with the Court’s Eighth Amendment mandate.
The Court’s recent decisions in Graham v. Florida and Miller v. Alabama prohibit sentences of life without the possibility of ...
Federal Enforcement Of Police Reform, 2014 University of Illinois College of Law
Federal Enforcement Of Police Reform, Stephen Rushin
No abstract provided.
Wrongful Convictions, Policing, And The 'Wars On Crime And Drugs', 2014 University of Illinois College of Law
Wrongful Convictions, Policing, And The 'Wars On Crime And Drugs', Hannah Laqueur, Stephen Rushin, Jonathan Simon
Wrongful conviction ought to be an aberration for any system of criminal punishment tied to legal adjudication; certainly in a system such as we have in the United States, premised on the constitutional bedrock of requiring a jury to find guilt beyond a reasonable doubt (Sandstrom v. Montana). We suggest, however, that during the so-called wars on crime and drugs, wrongful convictions are no longer mere aberrations, any more than is holding to the end of hostilities captured members of an enemy army. Specifically, we hypothesize that these two "fronts" in two parallel national "wars" have transformed police practices in ...
Extrajudicial Executions And Assaults In American Prisons And The Looming Human Rights Crisis, Robert M. Hardaway
This article examines the current due process crisis in American prisons and proposes reforms that would comply with human rights principles and international law. The number of prisoners killed in American prisons exceeds the number who are executed pursuant to judicial process. The bulk of these extrajudicial killings, and sexual assaults are the proximate consequence of close contact between prisoners. The predominate practice in American prisons is at the extreme ends of the spectrum—that is either placing prisoners in solitary confinement, a practice that has been challenged on Eighth Amendment grounds, or placing them in such close contact with ...
A Propósito De Un Elemento Esencial De La Defensa De La Competencia En Europa: Las Facultades De Investigación De La Comisión En Materia De Inspección (About An Essential Element Of The European Antitrust: Commission Investigation Faculties Of Inspection), 2013 SelectedWorks
A Propósito De Un Elemento Esencial De La Defensa De La Competencia En Europa: Las Facultades De Investigación De La Comisión En Materia De Inspección (About An Essential Element Of The European Antitrust: Commission Investigation Faculties Of Inspection), Jesús Alfonso Soto Pineda
Jesús A. Soto
En base a la prolongación de las facultades de investigación que le han sido proporcionadas a la Comisión Europea para combatir la existencia de acuerdos colusorios en el ámbito comunitario, el presente artículo expone las condiciones en las cuales el poder percibido con mayor sensibilidad desde el terreno empresarial, la inspección, debe ser puesto en marcha por la máxima autoridad comunitaria de competencia, analizando en detalle la contradicción natural que se presenta entre los objetivos propios de la inspección y dos postulados básicos relacionados con el derecho de defensa, como lo son el secreto profesional y el derecho a guardar ...
Which Felonies Pose A “Serious Potential Risk Of Injury” Under The Acca Residual Clause?, 2013 University of Illinois College of Law
Which Felonies Pose A “Serious Potential Risk Of Injury” Under The Acca Residual Clause?, Evan Tsen Lee, Lynn Addington, Stephen Rushin
Both the federal Armed Career Criminal Act and Sentencing Guidelines provide greatly enhanced punishment for defendants previously convicted of felonies that present a "serious potential risk of injury." The Supreme Court has by its own admission struggled to develop a formula for ascertaining which felonies meet this description. Most of the Justices agree that empirical data could be probative of the degree to which various offenses present risk of injury, but no existing study compares frequency of injury across a wide range of offenses. This Article tabulates injury data from a single source, the National Incident-Based Reporting System (NIBRS), with ...
The Moral Vigilante And Her Cousins In The Shadows, 2013 University of Pennsylvania Law School
The Moral Vigilante And Her Cousins In The Shadows, Paul H. Robinson
By definition, vigilantes cannot be legally justified – if they satisfied a justification defense, for example, they would not be law-breakers – but they may well be morally justified, if their aim is to provide the order and justice that the criminal justice system has failed to provide in a breach of the social contract. Yet, even moral vigilantism is detrimental to society and ought to be avoided, ideally not by prosecuting moral vigilantism but by avoiding the creation of situations that would call for it. Unfortunately, the U.S. criminal justice system has adopted a wide range of criminal law rules ...
An Overview Of The Effect Of Mental Illness Under U.S. Criminal Law, 2013 University of Pennsylvania Law School
An Overview Of The Effect Of Mental Illness Under U.S. Criminal Law, Paul H. Robinson
This paper reviews the various ways in which an offender's mental illness can have an effect on liability and offense grading under American criminal law. The 52 American jurisdictions have adopted a variety of different formulations of the insanity defense. A similar diversity of views is seen in the way in which different states deal with mental illness that negates an offense culpability requirement, a bare majority of which limit a defendant's ability to introduce mental illness for this purpose. Finally, the modern successor of the common law provocation mitigation allows, in its new breadth, certain forms of ...
S.H.O.T. Db (Statistics Help Officer Tactics) – Officer-Involved Shootings Database, 2013 Pace University
S.H.O.T. Db (Statistics Help Officer Tactics) – Officer-Involved Shootings Database, Hasan Arslan
Cornerstone 3 Reports : Interdisciplinary Informatics
No abstract provided.