Digital Commons Network^™

Arbitrary Detention? The Immigration Detention Bed Quota, Anita Sinha

Duke Journal of Constitutional Law & Public Policy

When President Obama took office in 2009, Congress through appropriations linked the U.S. Department of Homeland Security’s (DHS) funding to “maintaining” 33,400 immigration detention beds a day. This provision, what this Article refers to as the bed quota, remains in effect, except now the mandate is 34,000 beds a day. Since 2009, DHS detentions of non-citizens have gone up by nearly 25 percent. To accommodate for this significant spike over a relatively short period of time, the federal government has relied considerably on private prison corporations to build and operate immigration detention facilities.

This Article takes a comprehensive look at …

Subconstitutional Checks, Shima Baradaran Baughman

Utah Law Faculty Scholarship

Constitutional checks are an important part of the American justice system. The Constitution demands structural checks where it provides commensurate power. The Constitution includes several explicit checks in criminal law. Criminal defendants have rights to counsel, indictment by grand jury, and trial by jury; the public or executive elects or appoints prosecutors; legislatures limit actions of police and prosecutors; and courts enforce individual constitutional rights and stop executive misconduct. However, these checks have rarely functioned as intended because the Constitution and criminal law have failed to create—what I call—“subconstitutional checks” to adapt to the changes of the modern criminal state. …

Biometric Cyberintelligence And The Posse Comitatus Act, Margaret Hu

Scholarly Articles

This Article addresses the rapid growth of what the military and the intelligence community refer to as “biometric-enabled intelligence.” This newly emerging intelligence tool is reliant upon biometric databases—for example, digitalized storage of scanned fingerprints and irises, digital photographs for facial recognition technology, and DNA. This Article introduces the term “biometric cyberintelligence” to more accurately describe the manner in which this new tool is dependent upon cybersurveillance and big data’s massintegrative systems.

This Article argues that the Posse Comitatus Act of 1878, designed to limit the deployment of federal military resources in the service of domestic policies, will be difficult …

Innocent Until Born: Why Prisons Should Stop Shackling Pregnant Women To Protect The Child, Melanie Kalmanson

Florida State University Law Review

The practice of American prisons to shackle and otherwise restrain incarcerated, preg-nant women is problematic for several reasons. Such practices include shackling, chaining, and handcuffing pregnant inmates during their third trimester, transportation to and from medical facilities, labor and delivery, and postpartum recovery. Current discourse on this topic focuses primarily on how these practices invade the woman’s civil liberties, particularly the Eighth Amendment right against cruel and unusual punishment, and international human rights. Recent case law vindicates policy rationales for such practices—safety of others, safety of the woman herself, and securing flight risks.

These discussions overlook and this Note confronts …

Capital Punishment Of Unintentional Felony Murder, Guyora Binder, Brenner Fissell, Robert Weisberg

Notre Dame Law Review

Under the prevailing interpretation of the Eighth Amendment in the lower courts, a defendant who causes a death inadvertently in the course of a felony is eligible for capital punishment. This unfortunate interpretation rests on an unduly mechanical reading of the Supreme Court’s decisions in Enmund v. Florida and Tison v. Arizona, which require culpability for capital punishment of co-felons who do not kill. The lower courts have drawn the unwarranted inference that these cases permit execution of those who cause death without any culpability towards death. This Article shows that this mechanical reading of precedent is mistaken, because the …

Who Should Own Police Body Camera Videos?, Laurent Sacharoff, Sarah Lustbader

Sturm College of Law: Faculty Scholarship

Numerous cities, states, and localities have adopted police body camera programs to enhance police accountability in the wake of repeated instances of police misconduct, as well as recent reports of more deep-seated police problems. These body camera programs hold great promise to achieve accountability, often backed by millions of dollars of federal grants.

But so far, this promise of accountability has gone largely unrealized, in part because police departments exercise near-total control over body camera programs and the videos themselves. In fact, the police view these programs chiefly as a tool of ordinary law enforcement rather than accountability — as …

Subconstitutional Checks, Shima Baradaran Baughman

Notre Dame Law Review

Constitutional checks are an important part of the American justice system. The Constitution demands structural checks where it provides commensurate power. The Constitution includes several explicit checks in criminal law. Criminal defendants have rights to counsel, indictment by grand jury, and trial by jury; the public or executive elects or appoints prosecutors; legislatures limit actions of police and prosecutors; and courts enforce individual constitutional rights and stop executive misconduct. However, these checks have rarely functioned as intended because the Constitution and criminal law have failed to create—what I call—“subconstitutional checks” to adapt to the changes of the modern criminal state. …

The Dignity Canon, Noah B. Lindell

Cornell Journal of Law and Public Policy

Human dignity is not a freestanding constitutional right, but it is a strongly held constitutional value. To this point, however, human dignity has had no place in statutory interpretation. This Article argues that courts should create a dignity canon of interpretation, which would operate as a clear statement rule. If laws are to be construed to limit individual dignity, the legislature must expressly this plainly. By conducting re-dos of three Supreme Court cases in the areas of civil rights, criminal procedure, and personal health, the Article shows the promise of the dignity canon.

Cumulative Constitutional Rights, Kerry Abrams, Brandon L. Garrett

Faculty Scholarship

Cumulative constitutional rights are ubiquitous. Plaintiffs litigate multiple constitutional violations, or multiple harms, and judges use multiple constitutional provisions to inform interpretation. Yet judges, litigants, and scholars have often criticized the notion of cumulative rights, including in leading Supreme Court rulings, such as Lawrence v. Texas, Employment Division v. Smith, and Miranda v. Arizona. Recently, the Court attempted to clarify some of this confusion. In its landmark opinion in Obergefell v. Hodges, the Court struck down state bans on same-sex marriage by pointing to several distinct but overlapping protections inherent in the Due Process Clause, including the right to individual …

Reviving The Fourth Amendment: Reasonable Expectation Of Privacy In A Cell Phone Age, 50 J. Marshall L. Rev. 555 (2017), Marisa Kay

UIC Law Review

No abstract provided.

The Strange Life Of Stanley V. Illinois: A Case Study In Parent Representation And Law Reform, Josh Gupta-Kagan

Faculty Publications

This Article helps describe the growth of parent representation through an analysis of Stanley v. Illinois—the foundational Supreme Court case that established parental fitness as the constitutional lynchpin of any child protection case. The Article begins with Stanley’s trial court litigation, which illustrates the importance of vigorous parental representation and an effort by the court to prevent Stanley from obtaining an attorney. It proceeds to analyze how family courts applied it (or not) in the years following the Supreme Court’s decision and what factors have led to a recent resurgence of Stanley’s fitness focus.

Despite Stanley’s requirement that states prove …

First Amendment Right To A Remedy, Benjamin Plener Cover

Articles

Scholars and jurists agree that the First Amendment right “to petition the Government for a redress of grievances” includes a right of court access, but narrowly define this right as the right to file a lawsuit. This dominant view fails to meaningfully differentiate between the right to petition, the freedom of speech, and due process, missing the distinct significance of the Petition Clause when individuals petition courts. The most significant threats to court access today occur after the filing stage, when courts deny or limit remedies to legally injured persons — by enforcing a mandatory arbitration provision or an exhaustion …

Dignity And The Death Penalty In The United States Supreme Court, Bharat Malkani

UC Law Constitutional Quarterly

The concept of dignity is central to moral and legal issues about the death penalty. The United States Supreme Court has justified the use of dignity to retain the use of the death penalty. However, this article argues that dignity should not be used as a means to uphold the use of capital punishment. Instead, the concept of dignity involves the relationship between the "human dignity" of the people involved in the crime, the dignity of the wider community in whose name the death penalty is being imposed, and the dignity of the legal institution that administers capital punishment. As …

Protecting Our Defenders: The Need To Ensure Due Process For Women In The Military Before Amending The Selective Service Act, Kelsey L. Campbell

UC Law Constitutional Quarterly

On January 1, 2016, all previously closed frontline military occupations were opened to women for the first time in U.S. history. Shortly thereafter, several military leaders and politicians stated that due to the change in policy, women were then "equal to men" in the military and, therefore, should be required to register for Selective Service-the system that maintains a list of Americans fit for service in the event a military draft is requested by the president. While the recent change extended employment opportunity to women within the military, a number of polices and laws prevent women from achieving equality in …

The Criminal Justice Black Box, Samuel R. Wiseman

Scholarly Publications

"Big data "-- the collection and statistical analysis of numerous digital data points -- has transformed the commercial and policy realms, changing firms' understanding of consumer behavior and improving problems ranging from traffic congestion to drug interactions. In the criminal justice field, police now use data from widely dispersed monitoring equipment, crime databases, and statistical analysis to predict where and when crimes will occur, and police body cameras have the potential to both provide key evidence and reduce misconduct. But in many jurisdictions, digital access to basic criminal court records remains surprisingly limited, and, in contrast to the civil context, …

Agent Narc Is Not Your Client: Reflections On The Proper Understanding Of The Relationship Between Prosecutors And Investigating Agencies, Carrie Leonetti

UC Law Constitutional Quarterly

Assistant United States Attorneys increasingly conceive federal lawenforcement agents as their "clients" in criminal prosecutions. As both a descriptive and normative matter, this cannot be right. As a descriptive matter, official interpretations by the Department of Justice, the bench, the bar, and academic commentators almost always reject this "client" conception. It is inconsistent with the conception of prosecutorial obligations espoused by Brady v. Maryland, the American Bar Association model rules of ethics, federal statutes, and evidentiary law. As a normative matter, it could have serious implications for the law of attorney malpractice, prosecutorial immunity, the disclosure of favorable evidence to …

Criminals, Classrooms, And Kangaroo Courts: Why College Campuses Should Not Adjudicate Sexual Assault Cases, Ashley Sarkozi

Loyola of Los Angeles Law Review

No abstract provided.

Making Room For Juvenile Justice: The Supreme Court's Decision In Montgomery V. Louisiana, Chelsea S. Gumaer

Loyola of Los Angeles Law Review

No abstract provided.

Ncaa: No Consequences Against Athletes, Catalina Kelly

Loyola of Los Angeles Law Review

No abstract provided.

What Impact Is Felony Disenfranchisement Having On Hispanics In Florida?, Angel E. Sanchez

Honors Undergraduate Theses

This research produces original empirical estimates of Hispanics in Florida’s Dept. of Corrections (FDOC) and uses those estimates to measure the impact felony disenfranchisement is having on Hispanics in Florida. Research institutions find that data on Hispanics in the criminal justice system, particularly in Florida, is either lacking or inaccurate. This research addresses this problem by applying an optimal surname list method using Census Bureau data and Bayes Theorem to produce an empirical estimate of Hispanics in FDOC’s data. Using the Hispanic rate derived from the empirical FDOC analysis, the rate of Hispanics in the disenfranchised population is estimated. The …

"Plausible Cause": Explanatory Standards In The Age Of Powerful Machines, Kiel Brennan-Marquez

Faculty Articles and Papers

The Fourth Amendment's probable cause requirement is not about numbers or statistics. It is about requiring the police to account for their decisions. For a theory of wrongdoing to satisfy probable cause-and warrant a search or seizure-it must be plausible. The police must be able to explain why the observed facts invite an inference of wrongdoing, and judges must have an opportunity to scrutinize that explanation.

Until recently, the explanatory aspect of Fourth Amendment suspicion-"plausible cause"-has been uncontroversial, and central to the Supreme Court's jurisprudence, for a simple reason: explanations have served, in practice, as a guarantor of statistical likelihood. …

An Empirical Assessment Of Georgia's Beyond A Reasonable Doubt Standard To Determine Intellectual Disability In Capital Cases, Lauren Sudeall Lucas

Faculty Publications By Year

In Atkins v. Virginia, the Supreme Court held that execution of people with intellectual disabilities violates the Eighth Amendment’s prohibition on cruel and unusual punishment. In doing so, the Court explicitly left to the states the question of which procedures would be used to identify such defendants as exempt from the death penalty. More than a decade before Atkins, Georgia was the first state to bar execution of people with intellectual disability. Yet, of the states that continue to impose the death penalty as a punishment for capital murder, Georgia is the only state that requires capital defendants …

Allowing Lawless Police Conduct In Order To Forbid Lawless Civilian Conduct: The Court Further Erodes The Exclusionary Rule In Utah V. Strieff, George M. Dery Iii

UC Law Constitutional Quarterly

This Article analyzes Utah v. Strieff, in which the Supreme Court applied its attenuation of taint doctrine to drugs and paraphernalia recovered as a result of an illegal stop of a person. The Strieff Court ruled that the evidence, seized during a search incident to arrest after an unlawful seizure, was admissible because the officer learned of an unknown outstanding arrest warrant during the stop. Strieff reasoned that the discovery of this arrest warrant attenuated the connection between the initial illegal seizure and the evidence ultimately seized incident to arrest. This Article examines the concerns created by Strieffs ruling. This …

Trumping Asylum: Criminal Prosecutors For Illegal Entry And Reentry Violate The Rights Of Asylum Seekers, Natasha Arnpriester

UC Law Constitutional Quarterly

Criminal prosecution for the immigration-related infractions of illegal entry and illegal reentry have escalated dramatically under the Trump Administration, which has made targeting immigrants a top priority. This escalation is happening at a time when the population coming to the U.S. southern border is largely seeking safety from persecution and danger. The United States does not recognize asylum as a defense to illegal entry or illegal reentry, and asylum seekers are not excluded from being charged and criminally prosecuted for these infractions, despite U.S. treaty obligations prohibiting this practice. As a result, people coming to the United States to seek …

The Fragile Victory For Unaccompanied Children's Due Process Rights After Flores V. Sessions, Elizabeth P. Lincoln

UC Law Constitutional Quarterly

In 2017, the Ninth Circuit Court of Appeals found that when the federal government detains an unaccompanied child, that child has the right to request legal review of his or her custody before an immigration judge. In Flores v. Sessions, the court reaffirmed the right, which had been present in the text of the laws governing the treatment of immigrant youth, but had been ignored by executive branch bodies. In its analysis, the court considered the relationship between a twenty-year-old settlement and two acts of Congress that govern the treatment of immigrant youth. The Flores decision affects the lives of …

Mass Monitoring, Avlana Eisenberg

Scholarly Publications

Business is booming for criminal justice monitoring technology: these days “ankle bracelet” refers as often to an electronic monitor as to jewelry. Indeed, the explosive growth of electronic monitoring (“EM”) for criminal justice purposes—a phenomenon which this Article terms “mass monitoring”—is among the most overlooked features of the otherwise well-known phenomenon of mass incarceration.

This Article addresses the fundamental question of whether EM is punishment. It finds that the origins and history of EM as a progressive alternative to incarceration—a punitive sanction—support characterization of EM as punitive, and that EM comports with the goals of dominant punishment theories. Yet new …

Congress Blewett By Not Explicitly Making The Fair Sentencing Act Of 2010 Retroactive, Andrew Cockroft

Journal of Criminal Law and Criminology

In 2013, the Sixth Circuit Court of Appeals was the first Circuit Court to retroactively apply the Fair Sentencing Act of 2010. The Fair Sentencing Act sought to end the discriminatory effects of the Anti-Drug Abuse Act of 1986 and its treatment of one gram of crack cocaine as the equivalent to one hundred grams of powder cocaine. The Fair Sentencing Act was meant to remedy the injustices brought about by the infamous 100:1 ratio in crack-cocaine and powder cocaine minimum sentencing. Despite this purpose, the Fair Sentencing Act does not contain language that explicitly and unequivocally requires that the …

Special Education In Adult Correctional Facilities: A Right Not A Privilege, Melissa Edelson

Loyola of Los Angeles Law Review

A general diffusion of knowledge and intelligence being essential to the preservation of the rights and liberties of the people, the Legislature shall encourage by all suitable means the promotion of intellectual, scientific, moral, and agricultural improvement. – California Constitution art. IX §1.

A New Balance Of Evils: Prosecutorial Misconduct, Iqbal, And The End Of Absolute Immunity, Mark C. Niles

Faculty Publications

Criminal prosecutors wield immense power in the criminal justice system. While the majority of prosecutors exercise this power in a professional manner, there is compelling evidence of a serious and growing problem of prosecutorial misconduct in this country. Although much prosecutorial misconduct results in the violation of the constitutional and other legal rights of criminal defendants, prosecutors are protected from any liability arising from these violations in all but the most exceptional cases by the defense of absolute immunity. The US. Supreme Court has justified the application of absolute prosecutorial immunity, in part, by noting that other means of incentivizing …

Capital Punishment Of Unintentional Felony Murder, Guyora Binder, Brenner Fissell, Robert Weisberg

Journal Articles

Under the prevailing interpretation of the Eighth Amendment in the lower courts, a defendant who causes a death inadvertently in the course of a felony is eligible for capital punishment. This unfortunate interpretation rests on an unduly mechanical reading of the Supreme Court’s decisions in Enmund v. Florida and Tison v. Arizona, which require culpability for capital punishment of co-felons who do not kill. The lower courts have drawn the unwarranted inference that these cases permit execution of those who cause death without any culpability towards death. This Article shows that this mechanical reading of precedent is mistaken, because the …