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George Peter Mwanza And Melvin Beene V Attorney General Appeal No. 153/2016 Sc Selected Judgment No. 33 Of 2019, Ellah T.M. Siang’Andu

SAIPAR Case Review

On the 9th December 2019, the Supreme Court of Zambia delivered a landmark decision changing the human rights jurisprudence in the context of protecting and preserving the fundamental human rights of prisoners. The appellants were HIV positive and were both in custody at the Lusaka Central Prison. They petitioned the High Court contending breach of their rights to life and protection from inhuman treatment contrary to the Republican Constitution. The argument of the appellants was that the State’s failure to consider their dietary and health needs, due to the budgetary and logistical restraints, fell short of all prescribed standards for …

The Right To A Well-Rested Jury, Caroline Howe

Michigan Law Review

The vast amount of control that state trial judges exercise over the dynamics of their courtrooms is well established. The length of trial days and jury deliberations, however, has received little scholarly attention. Longstanding research has conclusively established the disruptive effects of sleep deprivation on many of the mental facilities necessary for juries to competently fulfill their duties. By depriving juries of sleep, trial judges may be compromising the fair rights of criminal defendants for the sake of efficiency. This Note argues that trial judges must use their discretion to ensure juries are well-rested, keeping jurors’ needs in mind. Further, …

Analyses Of Prosecutorial Power And Discretion In Mississippi: Evaluating Proposals To Address Misconduct And Abuse, Lucy Pruitt

Honors Theses

This thesis seeks to create a policy proposal in order to address incidences of prosecutorial misconduct and abuse of discretion in the Mississippi criminal justice system. To do so, the author has summarized and analyzed seven criminal cases in which defendants have become victims of prosecutorial misconduct in order to shed light on the lack of prosecutorial accountability in the state’s criminal justice system. In an attempt to solve the problem, the author has developed a novel grading rubric in order to objectively and systematically analyze and evaluate previously proposed policy recommendations by legal experts and justice organizations. The successes …

Peliputan Secara Langsung Persidangan Perkara Pidana Oleh Media Televisi Dihubungkan Dengan Asas Pemeriksaan Di Pengadilan Terbuka Untuk Umum Dalam Rangka Pembaharuan Hukum Acara Pidana, Merti Ardilla, Elis Rusmiati, Ijud Tajudin

Jurnal Hukum & Pembangunan

In the practice of judiciary in Indonesia, the phenomenon of direct trial of cases of punishment by the press appeared and then broadcast live through television media, this could occur in a situation as a trial announced for the public. This practice has a negative impact, among others, will refute the principle of the presumption of innocence and have an impact on the evidence at the trial. This study aims to find out and analyze the provisions regarding the coverage of trials in court by disputes with the public interest and the principle of examination at the trial open to …

Bucklew V. Precythe'S Return To The Original Meaning Of "Unusual": Prohibiting Extensive Delays On Death Row, Jacob Leon

Cleveland State Law Review

The Supreme Court, in Bucklew v. Precythe, provided an originalist interpretation of the term “unusual” in the Eighth Amendment of the United States Constitution. This originalist interpretation asserted that the word “unusual” proscribes punishments that have “long fallen out of use.” To support its interpretation, the Supreme Court cited John Stinneford’s well-known law review article The Original Meaning of “Unusual”: The Eighth Amendment as a Bar to Cruel Innovation. This Article, as Bucklew did, accepts Stinneford’s interpretation of the word “unusual” as correct. Under Stinneford’s interpretation, the term “unusual” is a legal term of art derived from eighteenth-century …

Land Of The Free, If You Can Afford It: Reforming Mayor's Courts In Ohio, Lucia Lopez-Hisijos

Cleveland State Law Review

Unlike most states in America, Ohio has a unique system of punishing minor misdemeanors and ordinance violations through municipal institutions called mayor’s courts. In 2017, Ohio had 295 of these courts, and they heard nearly 300,000 cases. But these are not normal courts. Ohio’s mayor’s courts do not conduct ability to pay hearings and can jail defendants who fail to pay court fines. With the author’s original research into Ohio’s mayor’s courts, this Note argues that these institutions can function like modern-day debtor’s prisons and violate indigent defendants’ constitutional right to Due Process. Ultimately, this Note proposes a model bill …

Growing Old And Getting Sick Are Dangerous In Prison: A Moral And Legal Argument For “Justice, Not Vengeance”, Jillian Sauer

Undergraduate Theses

In 2017 the Kentucky DOC reported that Kentucky prisons housed 2,521 persons categorized as “elderly”. Even though individuals in this population are more susceptible to violence and risk developing age-related illnesses the care of these individuals is not a financial priority for those in power. These individuals occupy a unique position as a marginalized group within a marginalized group, and one which is growing rapidly. As a result, it is necessary to develop a response drawing from Catholic social teaching and criminal justice ethics which addresses the unique problems faced by this population. At the core of this response is …

Has Revenge Become A Justification To Legitimize The Death Penalty?, Jordan Ryan

Duke Journal of Constitutional Law & Public Policy Sidebar

Revenge has played a role in criminal justice systems for thousands of years. From the Code of Hammurabi, to the Bible, to modern Supreme Court jurisprudence, revenge, or “getting even,” has been a consideration in how wrongdoers are punished, especially with respect to the imposition of the death penalty. Historically, revenge has not been viewed as a legitimate justification for punishment under American legal principles. However, in the past year, both the United States Supreme Court and the Department of Justice have signaled that revenge may well have a legitimate role in justifying the death penalty.

This Note will explore …

Pretrial And Error: The Use Of Statements Inadmissible At Trial In Preliminary Proceedings, Erin Hughes

Duke Journal of Constitutional Law & Public Policy Sidebar

This Note argues that a “criminal case,” as provided by the Fifth Amendment, begins with the initiation of adversarial judicial criminal proceedings, whether that commencement occurs through a formal charge, a preliminary hearing, indictment, information, or arraignment. A broad understanding of the Fifth Amendment’s scope aligns with the Second, Seventh, Ninth and Tenth Circuits’ analysis. In particular, this Note endorses the in-depth analysis provided by the Tenth Circuit in its determination that a “criminal case” under the Fifth Amendment includes preliminary proceedings. This Note further offers an analysis of past Supreme Court precedent as well as policy rationales that support …

Campus Sexual Assault And Due Process, Ilana Frier

Duke Journal of Constitutional Law & Public Policy Sidebar

College women experience rape and sexual assault at alarmingly high rates. One highly publicized statistic, famously asserted by President Obama, states that one in five women experience sexual assault while attending college. In 2011, the U.S. Department of Education radically expanded its involvement in campus sexual misconduct adjudications, encouraging vigorous enforcement. Sustained regulatory and public pressure effectuated some positive change for victims. However, a proliferation of litigation also followed. Students found responsible of campus sexual assault, most of whom were males, increasingly began suing their schools alleging due process violations in their adjudications. In 2018, the Trump administration's Department of …

The Twenty-First Century Poll Tax, Ryan A. Partelow

UC Law Constitutional Quarterly

Although disenfranchising voters over outstanding legal financial obligations (“LFOs”) is widely criticized, no court has yet been persuaded to strike down these laws. The practice continues to disenfranchise people based on wealth, and disproportionately affects the voting rights of people of color due to inherent racial disparities in socioeconomic status and the American criminal justice system. Although the concept of felon disenfranchisement itself has been affirmatively upheld by the U.S. Supreme Court, this Article argues that disenfranchisement for outstanding LFOs is more akin to the poll tax jurisprudence than to the felon-voting cases.

This Article aims to add to a …

On Target? Assessing Gun Sanctuary Ordinances That Conflict With State Law, Sheila Simon

West Virginia Law Review

No abstract provided.

Evolving Standards Of Decency: A View Of 8th Amendment Jurisprudence And The Death Penalty, Jared Lockhart, Madeline Hill

Brigham Young University Prelaw Review

In July 1997, Kenneth Foster was indicted on capital murder charges

and sentenced to death even though he had only committed robbery.

3 On August 14, 1996, Kenneth Foster and his friends, Mauriceo

Brown, DeWayne Dillard, and Julius Steen, rented a car and

drove to downtown San Antonio, Texas. Later that night, Brown

suggested that the men rob a few people in order to make up for the

money they had lost while partying. After their second robbery that

evening, Foster did not want to continue breaking the law, according

to Dillard’s courtroom testimony four years later. Dismissing

his request, …

Indigent Defense In West Virginia: A Historical Look At Public Defender Services, Ralph E. Mckinney Jr., Casey W. Baker J.D.

West Virginia Law Review

No abstract provided.

Debt Bondage: How Private Collection Agencies Keep The Formerly Incarcerated Tethered To The Criminal Justice System, Bryan L. Adamson

Northwestern Journal of Law & Social Policy

This Article examines the constitutionality of statutes which allow courts to transfer outstanding legal financial obligations to private debt collection agencies. In Washington State, the clerk of courts can transfer the legal financial obligation of a formerly incarcerated person if he or she is only thirty days late making a payment. Upon transfer, the debt collection agencies can assess a “collection fee” of up to 50% of the first $100.000 of the unpaid legal financial obligation, and up to 35% of the unpaid debt over $100,000. This fee becomes part of the LFO debt imposed at sentencing, and like that …

Weeding Out Injustice: Amnesty For Pot Offenders, Mitchell F. Crusto

UC Law Constitutional Quarterly

There are a growing number of States that have legalized marijuana, challenging the view that marijuana is a dangerous drug. These States are taking positions relative to both the retroactivity of the new laws and to amelioration of past offenses, which arguably contradict United States Supreme Court decisions on the retroactivity of changes in substantive criminal standards. And, many States recognize that past marijuana laws have greatly contributed to the problems related to a broken criminal justice system, including mass incarceration and racial disparities, particularly to the devastation of communities of color.

In response to these legal developments, this Article …

Mhpaea & Marble Cake: Parity & The Forgotten Frame Of Federalism, Taleed El-Sabawi

Dickinson Law Review (2017-Present)

No abstract provided.

Safe Consumption Sites And The Perverse Dynamics Of Federalism In The Aftermath Of The War On Drugs, Deborah Ahrens

Dickinson Law Review (2017-Present)

In this Article, I explore the complicated regulatory and federalism issues posed by creating safe consumption sites for drug users—an effort which would regulate drugs through use of a public health paradigm. This Article details the difficulties that localities pursuing such sites and other non-criminal-law responses have faced as a result of both federal and state interference. It contrasts those difficulties with the carte blanche local and state officials typically receive from federal regulators when creatively adopting new punitive policies to combat drugs. In so doing, this Article identifies systemic asymmetries of federalism that threaten drug policy reform. While traditional …

The Political Development Of Capital Punishment In The Modern Moroccan State, Mia Barr

Independent Study Project (ISP) Collection

The modern Moroccan state seen today is very young. Having only been independent from France since 1956, the country has spent the last sixty-four years crafting its post-colonial statehood. What has emerged is a hybrid political system with powers split, however unequally, between the King and his inner circle, known as the makhzen, and the Parliament. Not only is the monarchy constitutional—meaning that its legitimacy is literally written into the primary governing document of Morocco, which had its last referendum in 2011—but it is also self-sustaining and self-legitimizing, for the monarchy uses its constitutional powers to grant itself further powers …

Masterpiece Cakeshop: A Formula For Legislative Accommodations Of Religion, Matthew A. Brown

Akron Law Review

When two core identities clash, such as sexual orientation and religious belief, which one should prevail? I argue that, rather than picking a winner and a loser, the Supreme Court in Masterpiece Cakeshop allowed for a much broader solution than the Court was able to provide—legislative accommodations rooted in tolerance that protect the dignity of same-sex couples and respect sincere religious beliefs.

In Masterpiece Cakeshop, a Colorado baker refused to design a cake for a same-sex wedding based on his religious beliefs. Instead of picking a broad winner and loser, the Supreme Court ruled narrowly by finding the Colorado …

Presidential Immunity From Prosecution: Tolling The Statute Of Limitations, Margit Livingston

Brigham Young University Journal of Public Law

No abstract provided.

Dna Is Different: An Exploration Of The Current Inadequacies Of Genetic Privacy Protection In Recreational Dna Databases, Jamie M. Zeevi

St. John's Law Review

(Excerpt)

Part I of this Note discusses the fundamental science behind DNA and defines and explains the process of familial DNA searching. Part I also discusses how Carpenter v. United States provides a framework to begin thinking about the unique nature of DNA and privacy implications for its use, and why the revealing nature of this type of data warrants protection. Part II of this Note delves into the lack of constitutional and statutory protections for DNA in recreational DNA databases. First, Part II explains that traditional Fourth Amendment concepts, like search warrants, probable cause, reasonable expectation of privacy, third-party …

Secret Conviction Programs, Meghan J. Ryan

Washington and Lee Law Review

Judges and juries across the country are convicting criminal defendants based on secret evidence. Although defendants have sought access to the details of this evidence—the results of computer programs and their underlying algorithms and source codes—judges have generally denied their requests. Instead, judges have prioritized the business interests of the for-profit companies that developed these “conviction programs” and which could lose market share if the secret algorithms and source codes on which the programs are based were exposed. This decision has jeopardized criminal defendants’ constitutional rights.

Can Courts Stop Citizens From Prosecuting Criminal Cases Under The Clean Water Act?, Hannah Gardenswartz

Sustainable Development Law & Policy

No abstract provided.

Tinker-Ing With Machine Learning: The Legality And Consequences Of Online Surveillance Of Students, Amy B. Cyphert

Nevada Law Journal

All across the nation, high schools and middle schools are quietly entering into contracts with software companies to monitor the online activity of their students, attempting to predict the next school shooter or to intervene with a student who might be contemplating suicide. Systems using algorithms powered by machine learning trawl the Facebook posts of fifteen–year–olds and weed through the Twitter feeds of seventeen–year–olds. When certain keywords or features are flagged, the posts are forwarded to school administrators, who can decide whether the post requires an intervention and whether the student requires discipline. Who (or what) decides what these keywords …

Mental Health And The Constitution: How Incarcerating The Mentally Ill Might Pave The Way To Treatment, Samantha M. Caspar, Artem M. Joukov

Nevada Law Journal

Inmates with mental illnesses, including opioid addiction, face many challenges while incarcerated. Prisons and jails in their current state prove illequipped to address these problems. Because symptoms of these illnesses often involve suffering similar to an untreated physical injury, the inability of jails and prisons to address these inmates’ needs for treatment may violate the Eighth Amendment. Requiring correctional facilities to provide proper treatment may establish a balance between punishment and healing by exposing inmates to mental health treatments for a limited time, allowing for inmate protection, reducing recidivism, and fueling some inmates’ desires to seek additional help upon release. …

Justices Make The Tough-- But Right-- Call In Cross-Border Shooting Case, A. Benjamin Spencer

Popular Media

No abstract provided.

Kahler V. Kansas: The End Of The Insanity Defense?, Eric Roytman

Duke Journal of Constitutional Law & Public Policy Sidebar

In 1995, Kansas, along with a small number of other states, passed a statute abrogating the widely recognized common law insanity defense. At common law, a defendant could raise the defense when a mental illness impaired his ability to distinguish right from wrong, allowing him to escape liability even when the elements of the crime were otherwise fulfilled. However, under Kansas’ statutory scheme, evidence of a defendant’s mental illness can only be used to negate the mens rea element of the offense. In other words, evidence of mental illness is only relevant when it shows that the defendant lacked the …

You Made Gideon A Promise, Eh?: Advocating For Mandated Publicly Appointed Counsel At Bail Hearings In The United States Through Domestic Comparisons With Canadian Practices And Legal Considerations, Lauren Elizabeth Lisauskas

Georgia Journal of International & Comparative Law

No abstract provided.

The Press, National Security, And Civil Discourse: How A Federal Shield Law Could Reaffirm Media Credibility In An Era Of “Fake News”, Jenna Johnson

Texas A&M Law Review

The Constitution expressly provides protection for the freedom of the press. Yet there is one area in which the press is not so free: the freedom to refuse disclosing confidential sources when subpoenaed by the federal government. Currently, there is no federal reporter’s privilege. The Supreme Court has held the First Amendment provides no such protection, and repeated congressional attempts to codify a reporter’s privilege in a federal shield law have failed.

Arguments against a shield law include national security concerns and the struggle to precisely define “journalist.” Such concerns were evident in the most recently proposed shield law, the …