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Obstacles To Proving 24-Hour Lighting Is Cruel And Unusual Under Eighth Amendment Jurisprudence, Lauren Jaech

Washington Law Review

Twenty-four-hour lighting causes sleep deprivation, depression, and other serious disorders for incarcerated individuals, yet courts often do not consider it to be cruel and unusual. To decide if prison conditions violate the Eighth Amendment’s prohibition against cruel and unusual punishment, courts follow a two-part inquiry that requires examining the intent of prison officials (known as the subjective prong) as well as the degree of seriousness of the alleged cruel or unusual condition (the objective prong). Incarcerated individuals often file complaints challenging 24-hour lighting conditions. Whether they succeed on these claims may depend on the circuit in which they reside. Judges …

Closing The Door On Permanent Incorrigibility: Juvenile Life Without Parole After Jones V. Mississippi, Juliet Liu

Fordham Law Review

In April 2021, the U.S. Supreme Court decided Jones v. Mississippi, its latest opinion in a line of cases addressing when, if ever, a child should be sentenced to life in prison with no hope of parole or release. Although Jones purported to resolve division among lower courts over the findings that a sentencing court must make about a child defendant’s character and prospects for reform and rehabilitation, the decision will likely lead to further disagreement among courts.

This Note argues that although the Supreme Court’s jurisprudence has protected children from harsh sentences, it has also opened a Pandora’s …

Territoriality In American Criminal Law, Emma Kaufman

Michigan Law Review

It is a bedrock principle of American criminal law that the authority to try and punish someone for a crime arises from the crime’s connection to a particular place. Thus, we assume that a person who commits a crime in some location— say, Philadelphia—can be arrested by Philadelphia police for conduct deemed criminal by the Pennsylvania legislature, prosecuted in a Philadelphia court, and punished in a Pennsylvania prison. The idea that criminal law is tied to geography in this way is called the territoriality principle. This idea is so familiar that it usually goes unstated.

This Article foregrounds and questions …

No Means No: A Constitutional Challenge To The Forced Blood Draw Provision Of Ohio’S Implied Consent Statute, Justin Hill

Ohio Northern University Law Review

No abstract provided.

Reclaiming Establishment: Identity And The ‘Religious Equality Problem’, Faraz Sanei

Law Faculty Scholarship

Since at least 2017, the Court has implicitly recognized a right of equal access to generally available public benefits based on the beneficiary's religious identity or status. In Carson v. Makin (2022), the Court went a step further and, for the first time, concluded that the “status-use distinction lacks a meaningful application” in both theory and practice. It then held that restrictions on the use of public benefits for sacral purposes amount to religious discrimination because they impose substantial burdens on free exercise rights. Carson's holding, and the rationale underlying it, contravene settled case law and effectively gut the Establishment …

The Fourth Amendment And The Problem Of Social Cost, Thomas P. Crocker

Northwestern University Law Review

The Supreme Court has made social cost a core concept relevant to the calculation of Fourth Amendment remedies but has never explained the concept’s meaning. The Court limits the availability of both the exclusionary rule and civil damages because of their “substantial social costs.” According to the Court, these costs primarily consist of letting the lawbreaker go free by excluding evidence or deterring effective police practices that would lead to more criminal apprehension and prosecution. But recent calls for systemic police reform by social movements have a different view of social cost. So too do calls for reforming qualified immunity. …

Atkins V. Virginia At Twenty: Still Adaptive Deficits, Still In The Developmental Period, Sheri Lynn Johnson, John H. Blume, Brendan Van Winkle

Washington and Lee Journal of Civil Rights and Social Justice

Twenty years ago, in Atkins v. Virginia, the Supreme Court of the United States held that the Eighth Amendment prohibited states from executing persons with intellectual disability. While the Court’s decision is laudable and has saved many of the most vulnerable persons from the executioner, its effect has been undermined by recalcitrant states attempting to exploit language in the opinion permitting states to create procedures to implement the (then) new categorical prohibition. In this article, we examine how some states have adopted procedures which are fundamentally inconsistent with the clinical consensus understanding of the disability and how one state, …

Men's Rights, Gun Ownership, Racism, And The Assault On Women's Reproductive Health Rights: Hidden Connections, Walter S. Dekeseredy

Dignity: A Journal of Analysis of Exploitation and Violence

In this current era characterized by much fear of, and anxiety about, the political influence and actions of the U.S. alternative right (alt-right), only a small number of men’s rights organizations receive attention from the media, the Democratic Party, or a large cadre of progressives. This article demonstrates that ignoring all-male anti-feminist organizations is a flawed strategy for challenging the recent rise of the alt-right because these misogynistic groups are heavily involved in the gun rights movement, major contributors to racist practices and discourses, and active participants in efforts to criminalize and curtail women’s access to abortion. Another, but equally …

A Second Look For Children Sentenced To Die In Prison, Kathryn E. Miller

Articles

Scholars have championed “second look” statutes as a decarceral tool. Second look statutes allow certain incarcerated people to seek resentencing after having served a portion of their sentences. This Essay weighs the advantages and disadvantages of these statutes as applied to children sentenced to die in prison and argues that focusing on this small, discrete group may be a digestible entry point for more conservative states who fear widespread resentencing. Moreover, because early data indicates that children convicted of homicide and released as adults have very low recidivism rates, second look beneficiaries are likely to pose little threat to public …

Tanggung Jawab Hukum Inventor Atas Invensi Kecerdasan Buatan (Artificial Intelligence) Di Indonesia, Deslaely Putranti, Kurnia Dewi Anggraeny

Jurnal Hukum & Pembangunan

The pace of technological development can no longer be restrained until the emergence of artificial intelligence (AI) which later, turns out to have a negative impact on its application. AI is a computer system program created by humans. However, the invention of AI in one hand makes human work easier, it is also noticeable that there are several criminal cases "performed" by AI. This research is qualitative research with doctrinal research. The data used include secondary data consisting of primary, secondary and tertiary legal materials. The method of data collection is done through document study. This research concludes that the …

The White Supremacist Constitution, Ruth Colker

Utah Law Review

The United States Constitution is a document that, during every era, has helped further white supremacy. White supremacy constitutes a “political, economic and cultural system in which whites overwhelmingly control power and material resources, conscious and unconscious ideas of white superiority and entitlement are widespread, and relations of white dominance and non-white subordination are daily reenacted across a broad array of institutions and social settings.”1 Rather than understand the Constitution as a force for progressive structural change, we should understand it as a barrier to change.

From its inception, the Constitution enshrined slavery and the degradation of Black people by …

Reed V. Goertz: Brief Of Federal Courts Scholars As Amici Curiae In Support Of Petitioner, Leah Litman, Eve Brensike Primus

Appellate Briefs

This brief is filed on behalf of legal scholars who study federal jurisdiction, federal procedure, and constitutional law, and who have taught and written on the interplay between proceedings in state and federal courts.<\p>

The Court should hold that § 1983 claims challenging the constitutionality of state post-conviction DNA testing statutes do not accrue until the end of state-court litigation denying DNA testing. That is the only rule that comports with principles of federalism and comity, which favor sequencing federal litigation after related state proceedings. Unnecessary co-pendency of state and federal litigation invites unnecessary intrusions into state processes. If a …

No-One Receives Psychiatric Treatment In A Squad Car, Judy A. Clausen, Joanmarie Davoli

Faculty Scholarship

No abstract provided.

Sex Offender Legislation Ex Post Facto: The History And Constitutionality Of Michigan's Sex Offenders Registration Act, Alexander W. Furtaw

Journal of Legislation

Is Michigan’s Sex Offenders Registration Act (“MSORA”) constitutional? Until 2016, courts routinely said yes. In 2016, the Sixth Circuit in Does #1–5 v. Snyder held that the statute was an unconstitutional ex post facto law. In 2021, the Michigan Supreme Court echoed the Sixth Circuit’s holding in People v. Betts. In response, the Michigan legislature passed Public Law 295 of 2020 to amend MSORA, and courts treat the amended act as a “new” statute. Critical analysis of the amended statute’s legality is difficult because the state legislature has seemingly ignored constitutional issues with statutory proposals until after the fact, and …

The Supreme Court's Draft Abortion Decision Overturning Roe V. Wade: How Originalism's Rejection Of Family Formation Rights Undermines The Court's Legitimacy And Destabilizes A Functioning Federal Government, Kari Hong

Montana Law Review Online

No abstract provided.

Behind The Screen: The Constitutionality Of Remote Testimony For Survivors Of Domestic Violence, Rachel Harris

UC Law Constitutional Quarterly

“Before my hearing for my order of protection, I knew that he would try to contact me through other people, send me flowers, send presents to the kids, and all of those things will make me feel powerless when I have to go into court and see him face-to-face. I knew after all of that I would tell the judge that I changed my mind and that I am going to give him another chance. But being on the screen, I tell you, gave me a sense of empowerment. When the judge asked me if I wanted an order of …

Most Favored Racial Hierarchy: The Ever-Evolving Ways Of The Supreme Court’S Superordination Of Whiteness, David Simson

Michigan Law Review

This Article engages in a critical comparative analysis of the recent history and likely future trajectory of the Supreme Court’s constitutional jurisprudence in matters of race and religion to uncover new aspects of the racial project that Reggie Oh has recently called the “racial superordination” of whiteness—the reinforcing of the superior status of whites in American society by, among other things, prioritizing their interests in structuring constitutional doctrine. This analysis shows that the Court is increasingly widening the gap between conceptions of, and levels of protection provided for, equality in the contexts of race and religion in ways that prioritize …

State Is Required Under Texas Forfeiture Staute To Assume Burden Of Proving Proceeds Were Used In Gambling Activity., Curtis Vaughan Iii

St. Mary's Law Journal

Abstract Forthcoming.

Slaying The Serpents: Why Alternative Intervention Is Necessary To Protect Those In Mental Health Crisis From The State-Created Danger “Snake Pit”, Kathleen Giunta

Journal of Law and Policy

The Black Lives Matter protests in 2020 and ongoing reports of police brutality around the United States sparked extensive debate over qualified immunity and the legal protections that prevent police accountability. Individuals experiencing mental health crises are especially vulnerable to police violence, since police officers lack the requisite skills and knowledge to provide effective crisis support during mental health emergencies. Although the state-created danger doctrine was created by the courts as an exception to qualified immunity, it is so rarely applied that individuals harmed or even killed by police are left without legal remedy. This Note explores qualified immunity and …

Done The Time, Still Being Punished For The Crime: The Irrationality Of Collateral Consequences In Occupational Licensing And Fourteenth Amendment Challenges, Mccarley Maddock

Duke Journal of Constitutional Law & Public Policy Sidebar

Traditionally, retributive models of criminal justice rely on incarceration as punishment for a crime. Under this theory, punishment should end when the offender is released from prison. Yet, a decentralized web of statutes across the United States undermines this commonsense notion and continues to punish formerly incarcerated persons by denying them access to basic services for re-entry into society such as housing, government benefits, and employment. Specifically, thousands of the formerly incarcerated individuals are barred from working in or pursuing a career of their choice based on state statutes that prohibit entry into a given profession based on criminal history. …

Universalizing Fraud, Parmida Enkeshafi

Duke Journal of Constitutional Law & Public Policy Sidebar

The criminal trial of Elizabeth Holmes has reanimated public interest in fraud. Holmes, once a Silicon Valley prodigy, was charged with two counts of conspiracy to commit wire fraud and eleven counts of wire fraud. A jury found Holmes guilty on four counts, potentially subjecting her to 80 years in prison. This Note uses the example of Elizabeth Holmes's case to examine more broadly the role of morality in fraud and argues for a new framework by which to articulate and prosecute fraud.

Criminal jurisprudence has struggled to construct a satisfactory definition of "white-collar crime" since sociologist Edwin H. Sutherland …

The Burden Of Time: Government Negligence In Pandemic Planning As A Catalyst For Reinvigorating The Sixth Amendment Speedy Trial Right, Sara Hildebrand, Ashley Cordero

Villanova Law Review (1956 - )

No abstract provided.

From Negative To Positive Algorithm Rights, Cary Coglianese, Kat Hefter

William & Mary Bill of Rights Journal

We consider this issue here and suggest that the current calls for a negative right to be free from AI could very well transform over time into positive claims that demand the use of algorithmic tools by government officials. In Part I, we begin by sketching the current landscape surrounding the adoption of AI by government. That landscape is characterized by strong activist and scholarly voices expressing a pronounced aversion to the use of digital algorithms—and taking a decidedly negative rights tone. In Part II, we show that, although aversion to complex technology might be understandable, that aversion is neither …

“Rap Music On Trial”: Examining The Consequences Of Rap Lyrics Being Admissible At Trial, Malik Stewart

SLU Law Journal Online

Rap lyrics are being deemed admissible in court to convict criminal defendants. In this article, Malik Stewart considers the consequences of admitting rap lyrics to evidence to prove a defendant’s guilt, possible First Amendment violations, the efforts to prevent prosecutors from using rap lyrics as evidence, and the ways in which rap music is being targeted by prosecutors. The article also considers the emergence of Drill music and what to expect moving forward.

Symposium: Sexual Orientation, Gender Identity, & The Constitution: Queer Black Trans Politics And Constitutional Originalsim, Marc Spindelman

ConLawNOW

Queer Black trans politics offer an important frame for understanding the current constitutional moment. This is a moment in which the Supreme Court’s newly enthroned constitutional originalist project is taking off in ways that have race, sex, sexuality, and trans equality rights in its sights. Thinking with queer Black trans politics—and, in particular, their demands for intersectionality and for centering Black trans lives—this Essay presents a distinctive topology of LGBTQ rights and their intersections with constitutional race and sex guarantees. It considers how a queer Black trans-focused intersectional thinking plays out, including in the context of reproductive rights, and traces …

Are Constitutional Rights Enough? An Empirical Assessment Of Racial Bias In Police Stops, Rohit Asirvatham, Michael D. Frakes

Northwestern University Law Review

This Article empirically tests the conventional wisdom that a permissive constitutional standard bearing on pretextual traffic stops—such as the one announced by the Supreme Court in Whren v. United States—contributes to racial disparities in traffic stops. To gain empirical traction on this question, we look to state constitutional law. In particular, we consider a natural experiment afforded by changes in the State of Washington’s rules regarding traffic stops. Following Whren, the Washington Supreme Court first took a more restrictive stance than the U.S. Supreme Court, prohibiting pretextual stops by police officers, but later reversed course and instituted a …

Is Misdemeanor Cash Bail An Unconstitutional Excessive Fine?, Barnett J. Harris

Pepperdine Law Review

The Excessive Fines Clause is one of the least developed clauses pertaining to criminal procedure in the Bill of Rights. In fact, the Supreme Court has only interpreted the Clause a few times in its entire history. Yet, on any given day, hundreds of thousands of people languish in jails without having been convicted of anything, because most of these people are unable to meet the bail amount a judge sets. This Essay examines the surprisingly under-explored relationship between misdemeanor cash bail & pretrial detention and the Excessive Fines and Excessive Bail Clauses of the Eighth Amendment, using the Supreme …

Rewriting Whren V. United States, Devon W. Carbado, Jonathan Feingold

Faculty Scholarship

In 1996, the U.S. Supreme Court decided Whren v. United States—a unanimous opinion in which the Court effectively constitutionalized racial profiling. Despite its enduring consequences, Whren remains good law today. This Article rewrites the opinion. We do so, in part, to demonstrate how one might incorporate racial justice concerns into Fourth Amendment jurisprudence, a body of law that has long elided and marginalized the racialized dimensions of policing. A separate aim is to reveal the “false necessity” of the Whren outcome. The fact that Whren was unanimous, and that even progressive Justices signed on, might lead one to conclude that …

The Dignitary Confrontation Clause, Erin L. Sheley

Faculty Scholarship

For seventeen years, the Supreme Court’s Confrontation Clause jurisprudence has been confused and confusing. In Crawford v. Washington (2004), the Court overruled prior precedent and held that “testimonial” out-of-court statements could not be admitted at trial unless the defendant had an opportunity to cross-examine the declarant, even when the statement would be otherwise admissible as particularly reliable under an exception to the rule against hearsay. In a series of contradictory opinions over the next several years, the Court proceeded to expand and then seemingly roll back this holding, leading to widespread chaos in common types of cases, particularly those involving …

Juvenile Solitary Confinement And The Eighth Amendment, Taylor R. Graves

Honors Thesis

This literature review examines the practice of juvenile solitary confinement, applies the United States Supreme Court’s Eighth Amendment jurisprudence, argues that the practice should be declared unconstitutional as a violation of the Eighth Amendment, and calls for a categorical ban. The Cruel and Unusual Punishment Clause of the Eighth Amendment states, “nor [shall] cruel and unusual punishments [be] inflicted.” U.S. Const. amend. VIII. Juvenile solitary confinement is cruel and unusual, in violation of the Eighth Amendment, because juveniles are different. The United States Supreme Court has long recognized that juveniles should not be held to the same standards of …