Digital Commons Network^™

Reevaluating Felon-In-Possession Laws After Bruen And The War On Drugs, Laura Ginsberg Abelson

Faculty Journal Articles and Book Chapters

The legal landscape surrounding firearm possession is evolving rapidly. In 2022, the Supreme Court accelerated its expansion of the individual right to bear arms under the Second Amendment in New York Rifle & Pistol Ass’n v. Bruen. Since Bruen, courts around the country have struck down nearly all types of firearm regulations, with a notable exception: felon-in-possession laws. This Article examines the implications of a legal landscape where those who have prior felony convictions, and especially prior drug convictions, are punished harshly for the same behavior—possession of a firearm—that is constitutionally protected for nearly everyone else. I argue …

Penggunaan Unconventional Weapons Dalam Konflik Bersenjata Modern, Fadhillah Wahid Pramudya Aldiansyach

Jurnal Hukum & Pembangunan

The use of unconventional weapons such as cluster munitions, white phosphorus, nuclear weapons, artificial intelligence-based autonomous systems (AI/LAWS), and military neurotechnology is increasingly dominating modern armed conflicts. The characteristics of these weapons, particularly their widespread effects, uncertainty of control, and potential for automatic escalation, can pose serious challenges to the application of the principles of distinction and proportionality in International Humanitarian Law (IHL), especially when used in densely populated areas. The modernization of nuclear systems, the accelerated integration of AI into military command, and the emergence of neurotechnology indicate a regulatory gap that could potentially undermine humanitarian protection. This study …

Response: Diagonal Representation, Alma Magaña

Articles

A lot has been written about the crisis of indigent defense and the plethora of factors that have led to the crisis, like the lack of guidance on how indigent defense providers can most efficiently distribute their insufficient resources. This lack of guidance has left jurisdictions across the country to their own devices, resulting in a national landscape of very different models, each with its own variations of the same problems plaguing indigent defense.

The Military's Constitutional Role, Brenner M. Fissell

Faculty Publications

A basic principle of the American constitutional order is that civilian authority must be supreme over that of the military. The violation of this principle by the British was one of the grievances enumerated in the Declaration of Independence, and the Framers responded with a Constitution that made military rule impossible. But why is so-called “civilian control” of the military so important? This deep normative question has yet to be thoroughly answered by scholars, most of who assume it away as a given. This Article takes up that task, using contemporary political theory to defend the principle of civilian control. …

Amending Rule 15.3 Of The Mississippi Rules Of Criminal Procedure To Fully Capture Boykin V. Alabama And Acknowledge Systemic Coercion Indigent Defendants Face In Mississippi, Sarina P. Larson

MC Law Review

The U.S. Constitution—not a state—is what governs questions of constitutionality. It follows that for a state court to make a constitutionally sufficient record of a defendant’s waiver at their plea, the complete interpretation as to sufficiency by the United States Supreme Court must be followed. This Comment stands for the proposition that when Rule 15.3 of the Mississippi Rule of Criminal Procedure was adopted in 2017, it misinterpreted the call of the United States Supreme Court in Boykin v. Alabama, 395 U.S. 238 (1969). Ultimately, this Comment suggests amendments to Rule 15.3 that would place it in compliance with Boykin, …

Constitutional Issues Raised By The Civil-Criminal Dichotomy Of The Maine Oui Law, Bruce W. Smith

Maine Law Review

Moving to the forefront of a national trend, the Maine Legislature undertook a thorough reform of its operating under the influence (OUI) law in 1981. The new statute was billed "the toughest in the nation," largely because of a provision for mandatory prison sentences. The statute's most radical provision is not the mandatory prison term, however, but a section which gives prosecutors the option to treat less egregious first offenses as civil infractions rather than crimes. The section generates the broad issue addressed by this Comment: may trial by jury and other constitutional protections formerly afforded OUI defendants be denied …

Corpus Linguistics And The Original Meaning Of The Sixth Amendment, Wesley White

BYU Law Review

The Sixth Amendment guarantees the right of an accused to have the assistance of counsel in a criminal prosecution. Put simply, under the U.S. Supreme Court’s current framework, an accused does not enjoy this right until the government has brought a formal charge. Thus, an accused who engages in plea bargaining before being formally charged is not guaranteed the Sixth Amendment right to counsel. Many critics of this framework focus on the purpose of the Sixth Amendment to argue that the right to counsel should be guaranteed in pre-charge plea bargaining. Others point to policy concerns.

This Note is among …

Deadlocked Juries And The Allen Charge, Karen Pelletier O'Sullivan

Maine Law Review

Juries in cases requiring a unanimous verdict have three alternatives: a guilty verdict, a not guilty verdict, or no verdict for lack of unanimity. Deadlocked juries have long created a problem for efficient judicial administration. Early common law judges carried hung jurors around in oxcarts until a verdict "bounced out." More recent methods of forcing jurors to reach verdicts have included requiring them to deliberate all night and threatening to deprive them of water and heat. A more subtle method of encouraging jurors to reach verdicts is a trial judge's supplemental instruction to deadlocked jurors. A verdict-urging instruction is commonly …

Restraining The Prosecutor: Restrictions On Threatening Prosecution For Civil Ends, James A. Trowbridge

Maine Law Review

Prosecutors in some cases agree to dismiss criminal charges, admit a defendant to a diversion program, or enter a nolle prosequi in exchange for the defendant signing a waiver of any civil claims against law enforcement agents, governments, or private persons. The practice of a prosecutor bargaining for the release of law enforcement personnel or others from civil liability raises serious questions concerning the independence of the prosecutorial function, the relationship of prosecutors to other legal institutions, and the application of rules of professional responsibility. Generally, courts have been critical of these arrangements. The Model Code of Professional Responsibility (Code) …

In Re Caulk: A Prisoner's Right To Die—The Factor Of Intent, Laurence H. Leavitt

Maine Law Review

In prisons throughout the United States, prisoners commonly use hunger strikes as an avenue of protest to make personal demands, to call attention to poor prison conditions, or to make various political statements. Prisoners typically choose this route because they view their own bodies as one of the few things over which they actually have control and because the extreme slowness of a hunger strike gives others the chance to meet their political or personal demands. When confronted with such attempts at starvation, prison officials almost invariably have resorted to force-feeding the hunger strikers, although in recent years some prison …

State V. Durepo: Toward A Principled Maine Version Of The Impeachment Exception To The Exclusionary Rule, Andre D. Bouffard

Maine Law Review

As one might have anticipated, the broad substantive mandates of the major Warren Court exclusionary rule decisions have not been left completely intact by later Supreme Court decisions. Instead, the scope of the evidentiary exclusionary doctrine established by the Warren Court has been significantly narrowed by later Supreme Court decisions that have created numerous exceptions to the general command of the exclusionary rule that evidence obtained through unconstitutional means is inadmissible in a criminal trial. Although some members of the present Court argue that the exceptions to the exclusionary rule are consistent with the purposes of the rule, and therefore …

State V. Farnham: The Defendant's Exercise Of The Right To Stand Trial As Negative Character Evidence, Richard F. Buckley

Maine Law Review

A defendant in a criminal case may not receive a more severe sentence because he exercised his sixth amendment right to stand trial. However, determining when a court has more severely sentenced a defendant for exercising his constitutional right to a jury trial is a difficult task. Some argue that a defendant's choice to stand trial is relevant to the sentencing process as character evidence. The decision to stand trial, the argument goes, indicates a defendant's lack of remorse and an unwillingness to take the first step toward redemption by admitting his guilt. Others take the position that consideration in …

Document Subpoenas And The Moral Dilemma At The Heart Of The Privilege Against Self Incrimination, John W. Nields Jr.

St. John's Law Review

(Excerpt)

This Article will show that document subpoenas will nearly always compel “testimony.” This is so because the subpoena recipient is legally required to disclose to the party issuing the subpoena each and every document she has that is called for by the subpoena; and because, as Wigmore points out, the party issuing the subpoena will get the incriminating documents it seeks only if the subpoena recipient responds truthfully, disclosing every such incriminating document she has. And this means that the subpoena is compelling “testimony.”

That is the core teaching of the Hubbell decision in which the Court cites …

Imperfect Protection Against Perfect Enforcement: When Procedure Is Not Enough, William S. Fallon

Connecticut Law Review

Government technology that exclusively detects illegal conduct is per se constitutional. Today, the Fourth Amendment provides no protection—zero—against government technology that identifies illegality without also revealing private, innocent behavior.

Meanwhile, alarmingly, government is rapidly developing—and deploying— technology that bypasses the need to examine private, innocent behavior in its detection of wrongdoing. Government can know there is contraband in your bedroom drawer without the need to rummage through that drawer, your home, or any of your private information and possessions. Government can know there is illegal content on your phone without the need to search through that phone or any of …

On Teaching Constitutional Law: Challenges And Opportunities, Christopher W. Schmidt

Chicago-Kent Law Review

No abstract provided.

Whatcha Gonna Do When They Come For You? Assessing The Damage Associated With The Rise Of Reality Tv Policing And Proposing Avenues For Accountability And Reform, Danielle Taylor

Chicago-Kent Law Review

No abstract provided.

A Broken Shield: Ineffective Assistance Of Counsel Claims In Cases Of Racist Defense Attorneys, Sophia Sabet

Fordham Law Review

Defense attorneys are not immune to racism, and a defense attorney who holds racist beliefs about their client’s race fundamentally calls into question the representation received. Under the Sixth Amendment, all criminal defendants have the right to the effective assistance of counsel. To prevail on an ineffective assistance of counsel claim, the U.S. Supreme Court held in Strickland v. Washington that a criminal defendant must prove that their counsel’s performance was deficient and that the deficiency prejudiced the defense. The Supreme Court supplemented the Strickland standard in Cuyler v. Sullivan and United States v. Cronic, holding that a conflict …

How Not To Teach Criminal Law, Evan D. Bernick

Chicago-Kent Law Review

No abstract provided.

Colonizing By Contract, Emmanuel Hiram Arnaud

Faculty Scholarship

Since 1898, Puerto Rico has been a territory of the United States, meaning that Congress wields plenary power over the Island. Although scholars have highlighted the history and some modern manifestations of this power, conversations about how plenary power affects the territories have largely ignored constitutional criminal procedure.

This Article is the first to center the territory’s criminal legal system within the broader debate over the exercise of plenary power. In doing so, it fills significant gaps in the constitutional and criminal law literature on the territories by uncovering how the federal government’s plenary power affects local criminal adjudication. This …

Regulating Social Media Through Family Law, Katharine B. Silbaugh, Adi Caplan-Bricker

Faculty Scholarship

Social media afflicts minors with depression, anxiety, sleeplessness, addiction, suicidality, and eating disorders. States are legislating at a breakneck pace to protect children. Courts strike down every attempt to intervene on First Amendment grounds. This Article clears a path through this stalemate by leveraging two underappreciated frameworks: the latent regulatory power of parental authority arising out of family law, and a hidden family law within First Amendment jurisprudence. These two projects yield novel insights. First, the recent cases offer a dangerous understanding of the First Amendment, one that should not survive the family law reasoning we provide. First Amendment jurisprudence …

The Politics Of Constitutional Dignity Jurisprudence, Daniel Haefke

Brooklyn Law Review

This Article traces the politics of (human) dignity in US constitutional law. It reveals that the notion has undergone a conservative shift, which has resulted from Supreme Court Justices increasingly unleashing dignity’s dormant conservative potential. Legal scholars arguing for prominently including the notion in constitutional jurisprudence reflect the belief that adopting the language of dignity would push the Supreme Court to be more sensitive to progressive political demands. This progressive constitutional dignity optimism is historically plausible yet conceptually misguided. It is historically plausible considering the legacy of constitutional dignity in previous opinions of the Court. As the Article expounds, the …

"Legally Magic" Words: An Empirical Study Of The Accessibility Of Fifth Amendment Rights, Roseanna Sommers, Kate Weisburd

Northwestern University Law Review

Fifth Amendment case law (including Miranda v. Arizona) requires that individuals assert their right to counsel or silence using “explicit,” “clear,” and “unambiguous” statements—or, as some dissenting judges have lamented, using “legally magic” words. Through a survey of 1,718 members of the U.S. public, we investigate what ordinary people believe it takes to assert the right to counsel and the right to silence. We then compare their perceptions against prevailing legal standards governing invocation.

With respect to the right to counsel, the survey results indicate that members of the public have a uniformly lower threshold for invocation than do …

Criminal Juror Challenges And Csli: A Rule 16 Revision To Maintain Impartial Juries, Ivy Kaplan

Northwestern University Law Review

The Sixth Amendment of the U.S. Constitution guarantees criminal defendants “the right to a speedy and public trial by an impartial jury of the State.” Voir dire, the procedure during which the prosecution and the defense may challenge prospective jurors for cause or exercise peremptory challenges, purports to uphold this right. When the prosecution has access to cellular geolocation data on prospective jurors that the defense lacks, however, it may jeopardize the defendant’s Sixth Amendment rights.

This Note proposes a solution to that problem in the form of an addition to Rule 16 of the Federal Rules of Criminal Procedure. …

Rising Temperatures, The Prison Litigation Reform Act, And The Heat Death Of Human Dignity In Texas Prisons, Brianne Wylie

Northwestern University Law Review

This Note seeks to shed light on the life-threatening danger of extreme heat in un-air-conditioned Texas prisons. The Prison Litigation Reform Act (PLRA) starkly limits the relief available to those suffering and dying in these prisons. This Note proposes an amendment to the legislation that could create a path toward lasting relief for incarcerated people. After analyzing the effects of increasing heat on the particularly vulnerable prison population, this Note analyzes how the Supreme Court and the Fifth Circuit have handled claims alleging constitutionally violative prison conditions under the Eighth Amendment—in short, ineffectively, if at all. This Note then details …

Subjective Deliberate Indifference: The Correct Standard For Pre-Trial Detainees' Fourteenth Amendment Claims For Inadequate Medical Care, Douglas Weeks

Pace Law Review

This article examines the legal standard of “subjective deliberate indifference” as it pertains to the Fourteenth Amendment claims of pre-trial detainees facing inadequate medical care. With the Supreme Court’s evolving interpretation of constitutional protections for incarcerated individuals, this piece argues that subjective deliberate indifference offers a more appropriate framework for evaluating the state’s duty to provide adequate medical treatment. By analyzing relevant case law, including the significant distinctions between pre-trial detainees and convicted prisoners, the article highlights the necessity of considering the mental state of correctional officials in medical negligence claims. Furthermore, it explores the implications of this standard on …

Reconstructing Citizenship, Jenny E. Carroll, James Jeter

Faculty Scholarship

In our republican democracy, voting is a central right of citizenship. Yet millions of voters are routinely disenfranchised as a result of convictions or because their carceral status creates barriers to voting. In the past decade, academic scholarship has focused on the impact of disenfranchisement based on conviction. This work has mapped the legal and social implications of policies that deny voting rights to over five million otherwise eligible voters nationwide. Yet this work has some gaps. First, by focusing solely on conviction-based disenfranchisement, the existing scholarship has largely ignored fatal barriers to voting created (and at times perpetuated) by …

A Republic Of Spending, Jonathan S. Gould

Michigan Law Review

Large-scale spending measures make up many of Congress’s most important recent contributions to national policymaking. Congress has appropriated trillions of dollars to respond to emergencies, fight climate change, expand social safety net programs, spur technological innovation, and strengthen national infrastructure. While the contemporary Congress’s failure to enact landmark regulatory statutes causes many to characterize it as dysfunctional, Congress in fact remains quite active—its policymaking energy is simply concentrated in the spending domain.

Congress’s use of spending rather than regulatory legislation as its primary way of shaping national policy marks a significant shift in American governance. This Article examines the causes …

The Legal Landscape After Roe's Reversal, Rachel Rebouché

University of Cincinnati Law Review

No abstract provided.

A Defendant's Right To Counsel In Commitment Hearings For Nonpayment Of A Criminal Fine, Barbara A. Appleby

Maine Law Review

The federal constitutional right of an indigent defendant to appointed counsel in state court proceedings derives from two constitutional provisions. First, the sixth amendment, as incorporated by the due process clause of the fourteenth amendment, provides the basis for an absolute right to counsel in criminal prosecutions leading to actual imprisonment. Second, the due process clause, as an independent source of individual rights, provides the basis for the right to counsel in civil proceedings. Both the sixth amendment and the due process rights may be implicated in a hearing for non-payment of a criminal fine. Title 17-A, section 1304 of …

The Child Witness In Sexual Abuse Cases In Maine: Presentation, Impeachment, And Controversy, Kermit V. Lipez

Maine Law Review

In any sexual abuse trial, the entry of the child into the courtroom is a dramatic moment. The large door to the courtroom opens. A small child enters, accompanied by a victim advocate who walks with the child toward the witness stand. At the end of the public seats, the child is turned over to a court officer who escorts the child to the witness stand. In the typically high-ceilinged, expansive courtroom where we conduct our jury trials, the small child looks even smaller. Some children slouch in the witness chair, as if they were trying to hide. The jurors …