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More Than A Quick Glimpse Of The Life: The Relationship Between Victim Impact Evidence And Death Sentencing, Jerome Deise, Raymond Paternoster

UC Law Constitutional Quarterly

In striking down the use of victim impact evidence ("VIE") during the penalty phase of a capital trial, the Supreme Court in Booth v. Maryland and South Carolina v. Gathers argued that such testimony would appeal to the emotions of jurors with the consequence that death sentences would not be based upon a reasoned consideration of the blameworthiness of the offender. After a change in personnel, the Court overturned both decisions in Payne v. Tennessee, decided just two years after Gathers. The majority in Payne were decidedly less concerned with the emotional appeal of VIE, arguing that it would only …

Restoring The Vote: Former Felons, International Law, And The Eighth Amendment, John Ghaelian

UC Law Constitutional Quarterly

The right to vote is a right that many Americans cherish. But for over five million Americans the right to vote is something different. It is merely a dream because they are denied the right. Considered fundamental by the courts and the people, the United States contrarily stands alone in its refusal to allow many former felons the right to vote. The denial of the right to vote leaves a large swath of the population voiceless in matters ranging from the election of the president to who should sit on their child's school board.

This article begins by chronicling the …

Lafler And Frye: A New Constitutional Standard For Negotiation, Rishi Batra

Cardozo Journal of Conflict Resolution

The Sixth Amendment guarantees "[i]n all criminal prosecutions, the accused shall enjoy the right ... to have the Assistance of Counsel for his defense." In 1984 the Supreme Court in Strickland v. Washington established the standard for ineffective assistance of counsel that is a violation of this right. In a pair of decisions handed down in 2012, Lafler v. Cooper and Missouri v. Frye, the Supreme Court extended the holding in Strickland to cover ineffective assistance by defense counsel in the plea-bargaining phase. Recognizing that pleas account for ninety-five percent of all criminal convictions, the court stated that "the negotiation …

Waiving Goodbye To A Fundamental Right: Allocation Of Authority Between Attorneys And Clients And The Right To A Public Trial, 38 J. Legal Prof. 1 (2013), Alberto Bernabe

UIC Law Open Access Faculty Scholarship

No abstract provided.

A Reasonable Doubt About "Reasonable Doubt", Miller W. Shealy Jr.

Oklahoma Law Review

The Supreme Court has failed to define the concept of “reasonable doubt” with any precision. The Court tolerates conflicting definitions of “reasonable doubt.” It permits some jurisdictions to forbid any definition of “reasonable doubt,” while giving others wide latitude to define the concept in ways that are contradictory. If the Court truly regards the “proof beyond a reasonable doubt” standard to be an “ancient and honored aspect of our criminal justice system,”1 a “bedrock ‘axiomatic and elementary’ principle whose ‘enforcement lies at the foundation of the administration of our criminal law,’”2 then the Court cannot continue to tolerate the current …

Using Feathery Birds To Disguise Hateful Speech: Avatar, Hillary: The Movie, Citizens United, And How Birds Of The Same Feather Flock Together, Angela Mae Kupenda

Journal Articles

Some types of hateful speech may be called commercialism or entertainment. Yet, this speech disguises hate. This speech seems to be harmless entertainment, as harmless as doves or feathery birds. However, in reality this speech drowns out the truth in the marketplace, as individuals appear to become more gullible in watching film and other commercial speech. This essay explores this quandary by asking, and attempting to answer, four questions. First, is there any possible negative influence from commercial media, especially film, in the marketplace of ideas about nonwhites (i.e., has the truth about race and about nonwhites already won out …

Brady, Arkansas Rule 17.1, And Disclosure Of Scientific Evidence And Expert Opinion, J. Thomas Sullivan

University of Arkansas at Little Rock Law Review

The United States Constitution as well as state procedural rules require prosecutorial authorities to disclose evidence to the defense as a means for ensuring fairness in the prosecution of individuals charged with criminal offenses. When prosecutorial authorities fail to disclose evidence as required, the integrity of the criminal justice system is threatened and the defense is unable to adequately prepare for trial. This threat is illustrated and magnified by the substantiation of prosecutorial misconduct claims in high profile trials where prosecutors have been unable to resist the temptation not to disclose evidence that could damage the prosecution's case, or, where …

Pre-Apprendi Sentencing: Issues Surrounding The Retroactivity Of An Unconstitutional Sentence, Priscilla S. Zaldivar

St. Thomas Law Review

This comment ventures to provide a manageable resolution to the issues that have arisen from the implementation and subsequent limitations of the federal sentencing guidelines. Part II discusses the sentencing guidelines' history, creation, and evolution. This part also reviews the pertinent cases that have shaped the relevance and application of the sentencing guidelines by the U.S. Supreme Court. Part III details the successful retroactivity of the Boggs Act as a real-world example of the feasibility of retroactivity. Finally, Part IV provides an administrative solution to the problems with retroactive application of the Booker/Fanfan decision in order to remedy the unconstitutional …

Sixth Amendment Right To Counsel: Broaden The Scope, Decriminalize, And Ensure Indigents A Fair Chance In Court And In Life, Maria C. Pena

St. Thomas Law Review

Part I of this comment explains the history of the Sixth Amendment and the right to counsel, beginning at English common law through the current status of the right. Part II discusses the collateral consequences and social stigma an individual is faced with after conviction of a crime, despite the fact that the accused was not sentenced to jail. Part III summarizes the current problem an ex-convict faces based on the initial denial of assistance of counsel and offers a solution to this problem by explaining that the right to counsel should be extended to all criminal prosecutions. In addition, …

Students, Security, And Race, Jason P. Nance

UF Law Faculty Publications

In the wake of the terrible shootings in Newtown, Connecticut, our nation has turned its attention to school security. For example, several states have passed or are considering passing legislation that will provide new funding to schools for security equipment and law enforcement officers. Strict security measures in schools are certainly not new. In response to prior acts of school violence, many public schools for years have relied on metal detectors, random sweeps, locked gates, surveillance cameras, and law enforcement officers to promote school safety. Before policymakers and school officials invest more money in strict security measures, this Article provides …

Reclaiming Equality To Reframe Indigent Defense Reform, Lauren Sudeall Lucas

Faculty Publications By Year

Equal access to resources is fundamental to meaningful legal representation, yet for decades, equality arguments have been ignored in litigating indigent defense reform. At a time when underfunded indigent defense systems across the country are failing to provide indigent defendants with adequate representation, the question of resources is even more critical. Traditionally, advocates seeking indigent defense reform have relied on Sixth Amendment arguments to protect the rights of indigents in this context; however, the Sixth Amendment approach suffers from a number of shortcomings that have made it a poor tool for systemic reform, including its exclusive focus on attorney performance …

Plata V. Brown And Realignment: Jails, Prisons, Courts, And Politics, Margo Schlanger

Articles

The year 2011 marked an important milestone in American institutional reform litigation. That year, a bare majority of the U.S. Supreme Court, in an opinion in Brown v. Plata by Justice Anthony Kennedy, affirmed a district court order requiring California to remedy its longstanding constitutional deficits in prison medical and mental health care by reducing prison crowding. Not since 1978 had the Court ratified a lower court's crowding-related order in a jail or prison case, and the order before the Court in 2011 was fairly aggressive; theoretically, it could have (although this was never a real prospect) induced the release …

A Rejoinder To Professor Schauer's Commentary, Yale Kamisar

Articles

It is quite a treat to have Professor Frederick Schauer comment on my Miranda article.1 Professor Schauer is a renowned authority on freedom of speech and the author of many thoughtful, probing articles in other areas as well, especially jurisprudence. I am pleased that in large measure, Schauer, too, laments the erosion of Miranda in the last four-and-a-half decades2 and that he, too, was unhappy with the pre-Miranda due process/“totality of circumstances”/“voluntariness” test.3 I also like what Schauer had to say about “prophylactic rules,” a term that has sometimes been used to disparage the Miranda rules.4 As Schauer observes, the …

Pass Parallel Privacy Standards Or Privacy Perishes, Anne T. Mckenna

Faculty Scholarship

No abstract provided.

'You Are Hereby Sentenced To A Term Of . . . Enslavement?': Why Prisoners Cannot Be Exempt From Thirteenth Amendment Protection, Alvaro Hasani

Barry Law Review

No abstract provided.

A Reporter's Privilege In Florida: Has The Conflict Between The First Amendment And Sixth Amendment Been Reconciled?, Jay B. Rosman

Barry Law Review

This article examines the reporter's privilege in Florida and the inherent conflict between the First Amendment and Sixth Amendment as it exists between the freedom of the press and the right to a fair trial. The salient question addressed is whether the conflict between the First Amendment and the Sixth Amendment has been reconciled on the issue of a reporter's privilege by Florida courts and the Florida Legislature. The author provides both an analytic and empirical study. Analytically, the article looks to the two amendments to define a reporter's privilege and considers the history of the privilege. The article discusses …

Indiana V. Edwards: The Prospect Of A Heightened Competency Standard For Pro Se Defendants, Ashley N. Beck

University of Colorado Law Review

The Sixth Amendment to the United States Constitution guarantees a criminal defendant both the right to the assistance of counsel and the right of self-representation. The right of self-representation is deeply ingrained in the Anglo- American system of justice, but so is the requirement that a criminal defendant be tried only if competent to stand trial. In Indiana v. Edwards, the Supreme Court recognized a "gray area" of competency, noting that competency to stand trial with the assistance of counsel may not equate to competency to proceed pro se. In Edwards, the Court held that a trial court retains the …

Structural Overdelegation In Criminal Procedure, Anthony O'Rourke

Journal Articles

In function, if not in form, criminal procedure is a type of delegation. It requires courts to select constitutional objectives, and to decide how much discretionary authority to allocate to law enforcement officials in order to implement those objectives. By recognizing this process for what it is, this Article identifies a previously unseen phenomenon that inheres in the structure of criminal procedure decision-making.

Criminal procedure’s decision-making structure, this Article argues, pressures the Supreme Court to delegate more discretionary authority to law enforcement officials than the Court’s constitutional objectives can justify. By definition, this systematic “overdelegation” does not result from the …

Search, Seizure, And Immunity: Second-Order Normative Authority And Rights, Stephen E. Henderson, Kelly Sorensen

Faculty Articles

A paradigmatic aspect of a paradigmatic kind of right is that the rights holder is the only one who can alienate it. When individuals waive rights, the normative source of that waiving is normally taken to be the individual herself. This moral feature—immunity—is usually in the background of discussions about rights. We bring it into the foreground here, with specific attention to a recent U.S. Supreme Court decision, Kentucky v. King (2011), concerning search and seizure rights. An entailment of the Court’s decision is that, at least in some cases, a right can be removed by the intentional actions of …

Real-Time And Historic Location Surveillance After United States V. Jones: An Administrable, Mildly Mosaic Approach, Stephen E. Henderson

Faculty Articles

In United States v. Jones, the government took an extreme position: so far as the federal Constitution is concerned, law enforcement can surreptitiously electronically track the movements of any American over the course of an entire month without cause or restraint. According to the government, whether the surveillance be for good reason, invidious reason, or no reason, the Fourth Amendment is not implicated. Fortunately, that position was unanimously rejected by the High Court. The Court did not, however, resolve what restriction or restraint the Fourth Amendment places upon location surveillance, reflecting a proper judicial restraint in this nuanced and difficult …

Military Commissions And The Paradigm Of Prevention, David Cole

Georgetown Law Faculty Publications and Other Works

Why military commissions? Given the United States’s track record of success in trying terrorists in civilian criminal courts, and the availability of courts-martial to try war crimes, why has the United States government, under both the George W. Bush and Barack Obama administrations alike, insisted on proceeding through untested military commissions instead? In May 2009, President Obama defended military commissions with the following claims:

Military commissions have a history in the United States dating back to George Washington and the Revolutionary War. They are an appropriate venue for trying detainees for violations of the laws of war. They allow for …

Liberal Responsibilities, Robin West

Georgetown Law Faculty Publications and Other Works

This essay is a review of When the State Speaks, What Should it Say?: How Democracies can Protect Expression and Promote Equality by Corey Brettschneider (2012) and Ordered Liberty: Rights, Responsibilities, and Virtues by James E. Fleming & Linda C. McClain (2013).

In a parallel fashion, Fleming and McClain articulate and then defend a general conception of “constitutional liberalism” and its core individual rights against various critics, including communitarians such as Mary Ann Glendon and Michael Sandel, and “minimalists” such as Cass Sunstein and Jeremy Waldron, who argue that for various reasons those individual rights have undermined either civic society …

The Charter At Thirty, Michael Ignatieff

Osgoode Hall Law Journal

No abstract provided.

Rights Adjudication In A Plurinational State: The Supreme Court Of Canada, Freedom Of Religion, And The Politics Of Reasonable Accommodation, Sujit Choudhry

Osgoode Hall Law Journal

A disproportionate number of the Supreme Court of Canada’s recent cases on freedom of religion come out of Quebec and involve claims for reasonable accommodation. These decisions represent a point of national cleavage in two respects. First, in each case the Quebec Court of Appeal rejected the section 2(a) claims, and the Supreme Court of Canada overturned its decision. Second, the Supreme Court has often divided on national lines with one or more francophone judges from Quebec writing a concurrence or a sharp dissent. Moreover, francophone judges from outside Quebec have also broken ranks with their colleagues. The cleavages on …

Aboriginal And Treaty Rights And Violence Against Women, John Borrows

Osgoode Hall Law Journal

Violence against Indigenous women is a crisis of national proportions. Unfortunately, Indigenous peoples have been prevented from arguing that Indigenous communities are a constitutional site of activity for dealing with such violence. This article suggests that Aboriginal and treaty rights under section 35 of the Constitution could play a significant role in ensuring that all levels of government are seized with the responsibility for dealing with violence against women. This article explores how section 35 could be reinterpreted in ways that place issues of gender and violence at the heart of its analysis.

Parallel Investigations Between Administrative And Law Enforcement Agencies: A Question Of Civil Liberties, Shiv Narayan Persaud

Journal Publications

No abstract provided.

The Dangerous Fantasy Of Lincoln: Framing Executive Power As Presidential Mastery, Julie Novkov

Maryland Law Review

No abstract provided.

Perry V. New Hampshire: Abandoning The Supreme Court's Fundamental Concern With Eyewitness Reliability, Shaun Gates

Maryland Law Review

No abstract provided.

The Dignity Of Equality Legislation, Olatunde C.A. Johnson

Faculty Scholarship

In Congressional Power to Effect Sex Equality, Patricia Seith argues that legal and social science commentary on the ratification failure of the Equal Rights Amendment ("ERA") does not properly account for the legislative gains achieved by the Economic Equity Act ("Equity Act"). In drawing attention to the Equity Act, Seith's account challenges common explanations of the source of women's equality gains, particularly the narratives offered by legal commentators who typically focus on the role of the Constitution and the courts. As Seith points out, the conventional account in legal history focuses on the effectuation of a "de facto ERA," …

Waiving Goodbye To Due Process: The Juvenile Waiver System, Rachel Jacobs

Cardozo Journal of Equal Rights & Social Justice

The juvenile waiver system is flawed as it arbitrarily subjects minors to adult criminal proceedings, disregarding their potential for rehabilitation and violating their due process rights. The system must be reformed to ensure fair, individualized assessments and protect juveniles' rights.