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Completely Unguided Discretion: Admitting Non-Statutory Aggravating And Non-Statutory Mitigating Evidence In Capital Sentencing Trials, Sharon Turlington

The University of New Hampshire Law Review

[Excerpt] “As an attorney practicing exclusively in the area of death penalty defense at the trial level for the last ten years, my perspective on the problems inherent in the system seems vastly different from that presented in academic research and even in case law. While most of the recent changes in death penalty law have focused on the right of the defendant to have sentencing enhancing elements of an offense proven to a jury beyond a reasonable doubt, much of the evidence presented in an actual death penalty jury trial is non-statutory aggravation and non-statutory mitigation. Generally, non-statutory aggravating …

Death Is Unconstitutional: How Capital Punishment Became Illegal In America—A Future History, Jur. Eric Engle Ph.D.

The University of New Hampshire Law Review

[Excerpt] “A constitution is an organic fact of every state: it is a part of the being of the state. People, like the state, also have a constitution—a character. Just as people change over time, so do states. But just as there are natural limits on what people can or cannot become, so there are natural limits on what the state can and cannot fairly do. No man, nor any group of men, ex ante may justly take the life of another person, though perhaps their killing may be excused (or forgiven) ex post.”

"The death of Death would surely …

Implementation Of The U.S. Department Of Justice’S Special Counsel Regulations: Hearing Before The Subcomm. On Commercial And Administrative Law Of The H. Comm. On The Judiciary, 110th Cong., Feb. 26, 2008 (Statement Of Professor Neal Kumar Katyal, Geo. U. L. Center), Neal K. Katyal

Testimony Before Congress

No abstract provided.

Speaking Against Norms: Public Discourse And The Economy Of Racialization In The Workplace, Terry Smith

American University Law Review

Free speech controversies erupt from reactions to outlier voices, and these voices are often those of subordinated citizens such as racial minorities. Employing the tools of narrative, interviews with litigants and subjects, and interdisciplinary analysis of case law, Professor Terry Smith probes whether the social inequality of government employees of color affects the rigor of the First Amendment protection afforded their speech. Professor Smith argues that all public sector employees lack sufficient protection because their speech typically does not receive the highest constitutional scrutiny and because of the Supreme Court's recent decision in Garcetti v. Ceballos, which stripped public sector …

Beyond The Article I Horizon: Congress’S Enumerated Powers And Universal Jurisdiction Over Drug Crimes, Eugene Kontorovich

Faculty Working Papers

This paper explores the Article I limits faced by Congress in exercising universal jurisdiction (UJ) – that is, regulating extraterritorial conduct by foreigners with no affect on or connection the U.S. While UJ is becoming increasingly popular in Europe for the punishment of human rights offenses, Congress's primary use of UJ today is under the Maritime Drug Law Enforcement Act. This obscure law allows the U.S. to punish for violating U.S. drug laws foreign defendants on foreign vessels in international waters. The MDLEA's UJ provisions raise fundamental questions about the source and extent of Congress's constitutional power to regulate purely …

Beyond A Conceivable Doubt: The Quest For A Fair And Constitutional Standard Of Proof In Death Penalty Cases, Robert M. Hardaway

Sturm College of Law: Faculty Scholarship

The death penalty remains the most contentious issue in criminal law jurisprudence, and continues to be challenged on both constitutional and moral grounds. What is most remarkable about American death penalty jurisprudence is that it has traditionally focused on purely technical and procedural aspects of the imposition of the death penalty, despite the fact that the most vulnerable plank in the arsenal of death penalty defenders is evidence that innocent people have been, and will continue to be, executed. Perhaps no legal principle is more difficult to explain to the layman or first-year law student than that of all the …

Has Georgia Gone Too Far - Or Will Sex Offenders Have To, Jacqueline Canlas-Laflam

UC Law Constitutional Quarterly

There are few criminals in our society that receive more contempt and deserve less sympathy than sex offenders. In the last ten years, twenty-seven states have passed residency restrictions, limiting where a sex offender may live within the state. In some situations, the statutes have effectively banished sex offenders from parts of these states. The United States Supreme Court has yet to review any of these residency restriction statutes. In order to maintain the integrity of our legal system and because state legislatures may not represent the interests of sex offenders fairly, it is imperative to consider the constitutionality of …

The Return Of Reasonableness: Saving The Fourth Amendment From The Supreme Court, Melanie D. Wilson

Scholarly Articles

Although there is no recipe for defining Fourth Amendment reasonableness, the Supreme Court produces its most anomalous Fourth Amendment outcomes when it decides "mixed" questions of reasonableness, assessing issues that turn on how ordinary, prudent citizens think and behave. The Court treats these mixed issues, combinations of fact and law, as if they raise purely legal questions. But mixed issues are more complex and require someone to determine historical facts, apply those facts to principles of Fourth Amendment law, and consider the totality of the circumstances, including taking into account community and cultural influences. The Supreme Court will take its …

Why Sentencing By A Judge Satisfies The Right To Jury Trial: A Comparative Law Look At Blakely And Booker, Susan F. Mandiberg

McGeorge Law Review

No abstract provided.

Freedom Of Association, The Communist Party, And The Hollywood Ten: The Forgotten First Amendment Legacy Of Charles Hamilton Houston, Jose Felipe Anderson

McGeorge Law Review

No abstract provided.

Protecting The Voiceless: Ensuring Ice's Compliance With Standards That Protect Immigration Detainees, Kelsey E. Papst

McGeorge Law Review

No abstract provided.

Just Don't Say You Heard It From Me: Bridging The Davis V. Washington Divide Of Indistinguishable Primary-Purpose Statements, Thomas M. Forsyth Iii

UC Law Constitutional Quarterly

In Davis v. Washington, the Supreme Court sought to clarify its Crawford v. Washington holding, which restored the Constitution's Confrontation Clause to its original procedural function-to test the reliability of testimonial witness statements "in the crucible of cross-examination." Under Davis, the testimonial/non-testimonial categorization of witness hearsay statements is based on the primary purpose for which those statements were made to law enforcement agents. Despite the Court's two-pronged standard, Davis left a gaping hole between the extreme ends of the testimonial/nontestimonial spectrum where witness statements have a mixed or dual purpose and the primary purpose is indiscernible.

This note proposes that …

Who Says So - Defining Cruel And Unusual Punishment By Science, Sentiment, And Consensus, Aimee Logan

UC Law Constitutional Quarterly

The 2003 United States Supreme Court decision Atkins v. Virginia provides a unique opportunity to discuss how the Court integrates science into its constitutional philosophy. In Atkins, a majority of the Court concluded that executing criminals with mental retardation violates the Eighth Amendments prohibition against cruel and unusual punishment. Psychologists, psychiatrists and others in the scientific community have studied mental retardation for some time. However, the tests they use, and the criteria they look at, do not necessarily translate to the criminal justice system. Thus, in order to give legal significance to mental retardation, the Supreme Court must operationally define …

An Analysis Of Historical And Legal Sanctuary And A Cohesive Approach To The Current Movement, 42 J. Marshall L. Rev. 135 (2008), Pamela Begaj

UIC Law Review

No abstract provided.

Criminal And Sentencing Law Review Commissions: Detached, Contemplative Decision Making On Matters Of Criminal Justice Reform, 41 J. Marshall L. Rev. 777 (2008), John J. Cullerton, Kirk W. Dillard, James B. Durkin, Robert S. Molaro, Peter G. Baroni

UIC Law Review

No abstract provided.

Reforming The Illinois Criminal Code: Where The Clear Commission Stopped Short Of Its Goals, 41 J. Marshall L. Rev. 741 (2008), Terri L. Mascherin, Andrew Vail, Jennifer L. Dlugosz

UIC Law Review

No abstract provided.

"I'D Grab At Anything. And I'D Forget." Domestic Violence Victim Testimony After Davis V. Washington, 41 J. Marshall L. Rev. 937 (2008), Nancee Alexa Barth

UIC Law Review

No abstract provided.

Law V. National Security: When Lawyers Make Terrorism Policy, William G. Hyland Jr.

Richmond Journal of Global Law & Business

Are lawyers strangling our government’s ability to fight the first war of the twenty-first century? Does judicial adventurism and the fear of litigation undermine the War Against Terrorism? In essence, is our national security apparatus overlawyered? This article analyzes how some lawyers have produced a synthetic “litigation culture” over the war on terror. It argues that litigation concerning electronic surveillance, interrogation and all manners of prisoner treatment has chilled counterintelligence since 9/11.

Parents Involved And The Meaning Of Brown: An Old Debate Renewed, Jonathon L. Entin

Seattle University Law Review

This Article examines some of the jurisprudential roots of the racial discrimination debate, tracing the issue back to Brown and its immediate aftermath but finding the seeds of the disagreement in the ambiguities of the first Justice Harlan's celebrated dissenting opinion in Plessy v. Ferguson. The tensions between the two approaches did not matter in Plessy because segregation was impermissible under either theory, but the two approaches pointed in opposite directions in Parents Involved. Part II offers an overview of the Seattle and Louisville policies that were struck down in Parents Involved. Part III examines the various …

Parents Involved And The Meaning Of Brown: An Old Debate Renewed, Jonathan L. Entin

Faculty Publications

In Parents Involved in Community Schools v. Seattle School District No. 1 the Supreme Court debated the meaning of Brown v. Board of Education. This essay, prepared for a symposium on Parents Involved, traces the roots of the debate between color-blindness and anti-subordination to Brown itself and efforts to desegregate public schools in the wake of that decision but shows that the debate goes back at least as far as the tensions reflected in the first Justice Harlan's celebrated dissent in Plessy v. Ferguson.

The Death Penalty In America: Riding The Trojan Horse Of The Civil War, Michael S. Brazao

The Modern American

No abstract provided.

The Forgotten Right: Section 9 Of The Charter, Its Purpose And Meaning, James Stribopoulos

The Supreme Court Law Review: Osgoode’s Annual Constitutional Cases Conference

This paper examines why section 9 of the Charter, the right not to be arbitrarily detained or imprisoned, has failed to flourish. The paper argues that the right has essentially remained dormant because the Supreme Court of Canada has not yet expressly identified the underlying purpose of this important constitutional guarantee. After briefly canvassing the current state of affairs under section 9, the paper shifts to a purposive analysis of the guarantee. Its historic antecedents, the provision’s drafting history, the international influences that helped shape its framing, the testimony of senior civil servants involved in its drafting, as well as …

The Original Meaning Of "Unusual": The Eighth Amendment As A Bar To Cruel Innovation, John F. Stinneford

UF Law Faculty Publications

In recent years, both legal scholars and the American public have become aware that something is not quite right with the Supreme Court's Eighth Amendment jurisprudence. Legal commentators from across the spectrum have described the Court's treatment of the Cruel and Unusual Punishments Clause as "embarrassing," "ineffectual and incoherent," a "mess," and a "train wreck." The framers of the Bill of Rights understood the word "unusual" to mean "contrary to long usage." Recognition of the word's original meaning will precisely invert the "evolving standards of decency" test and ask the Court to compare challenged punishments with the longstanding principles and …

Employee Speech & Management Rights: A Counterintuitive Reading Of Garcetti V. Ceballos, Elizabeth Dale

UF Law Faculty Publications

In the two years since the decision came down, courts and commentators generally have agreed that the Supreme Court's decision in Garcetti v. Ceballos sharply limited the First Amendment rights of public employees. In this Article, I argue that this widely shared interpretation overstates the case. The Court in Garcetti did not dramatically change the way it analyzed public employees' First Amendment rights. Instead, it restated the principles on which those claims rest, emphasizing management rights and the unconstitutional conditions doctrine. By making those two theories the centerpiece of the decision, the Court in Garcetti defined public employee speech rights …

Rodriguez Redux, Jocelyn Downie, Simone Bern

Articles, Book Chapters, & Popular Press

Assisted suicide has once again surfaced as an issue of public attention. Just in the past year, four cases have been in the news. In addition the results of a major study on the attitudes of cancer patients in palliative care towards euthanasia and physician-assisted suicide and the results of an Ipsos Reid public opinion poll on assisted suicide were released. Vigorous calls both for and against the decriminalization of assisted suicide followed. Given that it has been fifteen years since the release of the most famous assisted suicide case in Canada, and given this recent spate of attention, we …

Nonparty Remote Electronic Access To Plea Agreements In The Second Circuit, David L. Snyder

Fordham Urban Law Journal

Widespread electronic access to case files gives rise to security concerns previously unrealized in the era of paper records. As the United States Department of Justice noted, the emergence of a "cottage industry" of websites that republish court filings online for the purposes of witness intimidation, retaliation, and harassment poses "a grave risk of harm" to cooperating witnesses and defendants. Accordingly, the benefits associated with remote electronic availability and dissemination of judicial documents may come at a considerable cost. This Note describes the options that district courts within the Second Circuit could implement to mitigate these concerns. Part I of …

Right To An Attorney, Henry L. Chambers, Jr.

Law Faculty Publications

The Supreme Court has identified two distinct rights to an attorney that stem from the U.S. Constitution. One is rooted in the Fifth Amendment. The other is rooted in the Sixth and Fourteenth Amendments.

Rehabilitating Juvenile Sex Offenders With A Life Sentence, 42 J. Marshall L. Rev. 187 (2008), Adam Doeringer

UIC Law Review

No abstract provided.

Reconciliation In The Wake Of Tragedy: Cambodia's Extraordinary Chambers Undermines The Cambodian Constitutiton, Tessa V. Capeloto

Washington International Law Journal

Between 1975 and 1979, the Khmer Rouge regime was responsible for approximately 1.7 million deaths caused by deportation, starvation, murder, and torture. In 2001, Cambodia established the Extraordinary Chambers, an internationalized domestic tribunal, or “hybrid court,” to prosecute the perpetrators most responsible for these atrocities. As the Cambodian government’s primary legal response to the Khmer Rouge, the tribunal conflicts with the requirements of Article 52 of the Cambodian Constitution, an article that requires a policy of national reconciliation to ensure national unity. Cultural conceptions of national reconciliation coupled with the legislative history and purpose of the constitution strongly suggest that …

Sex Offender Registration And Community Notification Policy: Past, Present, And Future, Wayne A. Logan

Scholarly Publications

Based on a keynote address delivered in conjunction with the Journal's annual symposium, this paper examines several of the major legal and policy issues associated with sex offender registration and community notification laws. Particular attention is dedicated to the Adam Walsh Act, a federal law enacted in July 2006 that continues efforts by Congress to foster changes in state registration and notification regimes as a result of its Spending Clause authority. In addition to discussing the federalism implications of the AWA, the paper examines several of its most significant provisions, including those calling for empirical assessment of registration and community …