Digital Commons Network^™

Physical Match: Uniqueness Of Torn Paper, Marilyn Aguilar

Themis: Research Journal of Justice Studies and Forensic Science

In the forensic science field, it is generally accepted that all tears and fractures are unique; however, there is limited scientific evidence to support this. This study tests the claim that all tears are unique, focusing on paper. One-hundred Office Depot brand 3” x 5” blank, white index cards were torn in half by hand. Six halves were randomly removed; the remaining 94 halves were mixed and then matched by a novice using end-match analysis. The removal of the 6 random halves left 44 matching pairs. Of the remaining halves, all 44 pairs were correctly matched. The results show that …

Justifying Justice: Six Factors Of Wrongful Convictions And Their Solutions, Colby Duncan

Themis: Research Journal of Justice Studies and Forensic Science

There have been over 300 post-conviction DNA exonerations in the history of the United States. While this number may initially seem significant, there is still an unfathomable population of wrongfully convicted prisoners who have yet to be considered for retrials. Unaddressed wrongful conviction cases highlight the unacceptable weaknesses in the U.S. justice system, weaknesses that include poor investigative tactics and the acceptance or allowance of inaccurate and unreliable evidence. This paper will dutifully analyze the causes that lead to wrongful convictions and amply discuss potential solutions, all of which includes eyewitness misidentification, improper forensics, false confessions, informants, government misconduct, and …

A Century In The Making: The Glorious Revolution, The American Revolution, And The Origins Of The U.S. Constitution’S Eighth Amendment, John D. Bessler

William & Mary Bill of Rights Journal

The sixteen words in the U.S. Constitution’s Eighth Amendment have their roots in England’s Glorious Revolution of 1688–89. This Article traces the historical events that initially gave rise to the prohibitions against excessive bail, excessive fines, and cruel and unusual punishments. Those three proscriptions can be found in the English Declaration of Rights and in its statutory counterpart, the English Bill of Rights. In particular, the Article describes the legal cases and draconian punishments during the Stuart dynasty that led English and Scottish parliamentarians to insist on protections against cruelty and excessive governmental actions. In describing the grotesque punishments of …

In Defense Of Hybrid Representation: The Sword To Wield And The Shield To Protect, Kelly Rondinelli

William & Mary Bill of Rights Journal

No abstract provided.

Gamble V. United States: A Commentary, Kayla Mullen

Duke Journal of Constitutional Law & Public Policy Sidebar

Under the judicially created dual-sovereignty exception, a defendant may be prosecuted by state and federal governments for the same conduct, due to the fact that the state and federal government constitute two separate sovereignties. The doctrine is grounded in the idea that each sovereign derives its power from independent sources—the federal government from the Constitution and the states from their inherent police power, preserved to them by the Tenth Amendment—and thus, each sovereign may determine what constitutes an offense against its peace and dignity in an exercise of its own sovereignty. Under this exception, defendants, by a single act, may …

The Thirteenth Amendment: Modern Slavery, Capitalism, And Mass Incarceration, Michele Goodwin

Cornell Law Review

Slavery's preservation in the United State can-in part-be explained by its fluid transformations, which continuously exacted economic gains, preserved southern social order, and inured benefits to private parties as well as the state. These transformations did not outpace law. Rather, the rule of law in the south and lawlessness among local law enforcement frequently accommodated these transformations and innovations. Historically, efforts to stamp out the myriad forms of slavery-convict leasing, peonage, contract transfers, so-called "apprenticeships," and chain gangs-frequently fell short because of local collusion and complicity, weak federal interventions and protections, and violence. The specter of lynching, which included the …

Local Evidence In Constitutional Interpretation, Brandon L. Garrett

Cornell Law Review

The Supreme Court frequently relies on state law when interpreting the U.S. Constitution. What is less understood is the degree and manner in which the Supreme Court and other federal courts look to local law. Although it has gone largely unnoticed, there is a robust practice of acknowledging and accounting for local law in the course of constitutional interpretation. Local evidence may inform the decision whether to recognize a constitutional right, it may inform the interpretation of the right, and it may inform the remedies for a constitutional violation. For example, the Supreme Court has examined local enforcement patterns to …

A Child Litigant's Right To Counsel, Kevin Lapp

Loyola of Los Angeles Law Review

As the Supreme Court put it a half century ago, the right tocounsel for juveniles reflects “society’s special concern for children” and “is of the essence of justice.” In a variety of legal proceedings, from delinquency matters to child welfare proceedings to judicial bypass hearings, the law requires the appointment of counsel to child litigants. While coherent in the whole, the law regarding counsel for child litigants is a patchwork of state and federal constitutional rulings by courts and statutory grants. Legal scholarship about a child litigant’s right to counsel is similarly fragmented. Predominantly, legal scholars have examined arguments for …

Equitable Gateways: Toward Expanded Federal Habeas Corpus Review Of State Court Criminal Convictions, Eve Brensike Primus

Articles

State prisoners who file federal habeas corpus petitions face a maze of procedural and substantive restrictions that effectively prevent almost all prisoners from obtaining meaningful review of their convictions. But it is a mistake to think that habeas litigation is just a Kafkaesque nightmare with no constructive potential. Federal courts do sometimes cut through the doctrinal morass to consider state prisoners’ claims, relying on what this Articleterms "equitable gateways" to federal habeas relief. Litigants and courts generally underestimate the potential these gateways offer, with the result that habeas litigation does not focus on them as often as it should. Here …

Institutional Death: Effects Of Carceral State And Education Institution On Black Men, Shontoria D. Pratt

African American Studies - All Scholarship

African American men have been dying at an alarming rate for many years. Issues such as violence, prison, education success rates, and health related issues, as well as institutional injustice, have been significant factors in these physical and mental deaths of African American men. The purpose of this research is to investigate the correlation, if any, between the quality of life of African American men in urban cities and their level of Afrocentric knowledge. To what extent does the exposure of Afrocentric knowledge affect the views or help African American men avoid these deaths? This research will present preliminary ideas …

Remarks On Prosecutorial Discretion And Immigration, Shoba S. Wadhia

Dickinson Law Review (2017-Present)

No abstract provided.

The Impact Of Prosecutorial Misconduct, Overreach, And Misuse Of Discretion On Gender Violence Victims, Leigh Goodmark

Dickinson Law Review (2017-Present)

Prosecutors are failing victims of gender violence as witnesses and when they become defendants in cases related to their own victimization. But it is questionable whether that behavior should be labeled misconduct. The vast majority of these behaviors range from misuses of discretion to things that some might consider best practices in handling gender violence cases. Nonetheless, prosecutors not only fail to use their discretion appropriately in gender violence cases, but they take affirmative action that does tremendous harm in the name of saving victims and protecting the public. The destructive interactions prosecutors have with victims of gender violence are …

Banning Solitary For Prisoners With Mental Illness: The Blurred Line Between Physical And Psychological Harm, Rosalind Dillon

Northwestern Journal of Law & Social Policy

No abstract provided.

No Indeterminate Sentencing Without Parole, Katherine Puzauskas, Kevin Morrow

Ohio Northern University Law Review

This article looks critically at the indeterminate sentencing system that survived after the elimination of parole in Arizona in 1993. It begins by exploring the purpose and history of indeterminate sentencing and parole as well as its earliest constitutional challenges and eventual decline. Next it compares two commonly confused forms of “release”: parole and executive clemency. The article then examines the three types of defendants affected by indeterminate sentences without parole: death row defendants denied parole eligibility instructions at trial, defendants sentenced with parole at trial, and defendants whose plea agreement includes parole. Finally, the article argues that without parole, …

Punishing Poverty: Robinson & The Criminal Cash Bond System, Lauren Bennett

Washington and Lee Journal of Civil Rights and Social Justice

The current cash bail system works in a way that punishes poverty. In Robinson v. California, the Supreme Court held that it is unconstitutional under the Eighth Amendment to punish an individual for a status or condition. Poverty is a status. The cash bail system is unconstitutional under Robinson and the Eighth Amendment because it punishes the status of poverty. Similar to drug addiction, poverty “may be contracted innocently or involuntarily or it might even take hold from the moment of a person’s birth.” Kalief Browder had no control over his family’s financial position. Yet, this financial position kept him …

Dying Constitutionalism And The Fourteenth Amendment, Ernest A. Young

Marquette Law Review

None

Bloody Hell: How Insufficient Access To Menstrual Hygiene Products Creates Inhumane Conditions For Incarcerated Women, Lauren Shaw

Texas A&M Law Review

For thousands of incarcerated women in the United States, dealing with menstruation is a nightmare. Across the country, many female prisoners lack sufficient access to feminine hygiene products, which negatively affects their health and rehabilitation. Although the international standards for the care of female prisoners have been raised in attempt to eliminate this issue, these stan- dards are often not followed in the United States. This Comment argues that denial of feminine hygiene products to female prisoners violates human de- cency. Additionally, this Comment considers possible constitutional violations caused by this denial, reviews current efforts to correct this problem, and …

Back To The Future: Permitting Habeas Petitions Based On Intervening Retroactive Case Law To Alter Convictions And Sentences, Lauren Casale

Fordham Law Review

In 1948, Congress enacted 28 U.S.C. § 2255, which authorizes a motion for federal prisoners to “vacate, set aside or correct” their sentences, with the goal of improving judicial efficiency in collateral review. Section 2255(e), known as the “savings clause,” allows federal inmates to challenge the validity of their imprisonments with writs of habeas corpus if § 2255 motions are “inadequate or ineffective to test the legality of [their] detention[s].” Due to the U.S. Supreme Court’s and Congress’s silence regarding what suffices as “inadequate or ineffective,” the circuit courts have adopted varied standards. The Sixth and Seventh Circuits hold that …

Protecting The Fifth Amendment: The Residual Clause In The Mandatory Guidelines Is Void For Vagueness, Olivia M. Tourgee

St. John's Law Review

(Excerpt)

The first part of this Note will address the specific problem the Mandatory Guidelines present. First, the Mandatory Guidelines will be defined, and the mandatory and binding nature of these Mandatory Guidelines will be explored in depth. Second, this Note will explain the significance of the Supreme Court’s opinion in Booker that declared the Mandatory Guidelines unconstitutional. Third, this Note will evaluate Beckles, where the Supreme Court held that the Advisory Guidelines were not subject to vagueness challenges. Thus, the first part of this Note will set the stage for the problem that the Mandatory Guidelines present.

The second …

The Constitutional Rights Of Advanced Robots (And Of Human Beings), R. George Wright

Arkansas Law Review

Constitutional rights create and destroy otherwise available options for the rights-bearer, for governments, and for affected third parties. Thus, conferring a constitutional right always requires at least some minimal defense. But conferring a constitutional right can certainly be appropriate if the recipient of the right seems to deserve or otherwise qualify for the right in question, or if conferring the right makes sense on other, perhaps partly pragmatic, grounds.

The Thirteenth Amendment, Prison Labor Wages, And Interrupting The Intergenerational Cycle Of Subjugation, Josh Halladay

Seattle University Law Review

This Comment argues that meager or no compensation for prisoners, who are disproportionately black and other persons of color, entraps them and their children in a cycle of subjugation that dates back to the days of slavery, and this Comment proposes to interrupt this cycle by setting a minimum wage for prisoners and creating college savings accounts for their children. As part of the cycle, when people enter prisons and the doors behind them close, so do their families’ bank accounts and the doors to their children’s schools. At the same time, the cells next to them open, ready to …

When A Tent Is Your Castle: Constitutional Protection Against Unreasonable Searches Of Makeshift Dwellings Of Unhoused Persons, Evanie Parr

Seattle University Law Review

This Note will argue that all jurisdictions should follow the Washington State Court of Appeals, Division II in validating makeshift dwellings used by people experiencing homelessness as spaces protected from unwarranted police intrusions by shifting evaluations of “reasonable expectations of privacy” to a more equitable standard that appreciates the realities of economic disparity. This approach to constitutional protections against unreasonable searches and seizures is imperative to protect the rights of people experiencing homelessness, given that such individuals are regularly subjected to invasions of privacy and heightened exposure to the criminal justice system.

Younger Generations Are Infected By Continuous Socialization To Accept Diminished Privacy: A Global Analysis Of How The United States' Constitutional Doctrine Is A Main Contributor To Eroded Privacy, Tiffany Kim

Indiana Journal of Global Legal Studies

Since the nineteenth century, privacy concerns have increased with the growth of technology. The invention of instantaneous photography, coupled with the enlarged presence of press, was met with concerns of degraded privacy. Society has formed expectations of privacy, but as time passes, those expectations continue to diminish. Younger generations have been socialized to accept lessened levels of privacy in this digitalized world of mass data and connectivity.

Individual privacy expectations vary globally. The construction of China's government and culture produces a lesser expectation of individual privacy than that of the United States. As outlined in the U.S. Constitution, U.S. citizens …

The State Of The Death Penalty, Ankur Desai, Brandon L. Garrett

Notre Dame Law Review

The death penalty is in decline in America and most death penalty states do not regularly impose death sentences. In 2016 and 2017, states reached modern lows in imposed death sentences, with just thirty-one defendants sentenced to death in 2016 and thirty-nine in 2017, as compared with over three hundred per year in the 1990s. In 2016, only thirteen states imposed death sentences, and in 2017, fourteen did so, although thirty-one states retain the death penalty. What explains this remarkable and quite unexpected trend? In this Article, we present new analysis of state-level legislative changes that might have been expected …

The Demise Of § 1983 Malicious Prosecution: Separating Tort Law From The Fourth Amendment, Erin E. Mcmannon

Notre Dame Law Review

The common-law tort of malicious prosecution originally developed to provide a remedy for plaintiffs who were unjustly prosecuted in a criminal proceeding. Today, malicious prosecution actions can be brought to redress wrongful civil actions as well. The “central thrust” of an action for malicious prosecution is a right not to be involved in an unjustified litigation.

This Note suggests that the confusion in this area of law derives from the use of the language of malicious prosecution tort law to describe what really amounts to a Fourth Amendment seizure claim under § 1983. There is no constitutional right to be …

Weed Whacking Through The Tenth Amendment: Navigating A Trump Administration Threat To Withhold Funding From Marijuana-Friendly States, Arlen Gharibian

Loyola of Los Angeles Law Review

The Trump administration has taken a firm stance against marijuana legalization at the state level. While an official federal policy is still pending, this Article focuses on whether the Trump administration’s threats to preventCalifornia from pursuing its duly enacted marijuana legalization law violates the Tenth Amendment. This Article then addresses how the federal government could achieve its goal while remaining within the bounds of the Constitution.

Graffiti, Speech, And Crime, Jenny E. Carroll

Faculty Scholarship

Graffiti resides at the uncomfortable intersection of criminal law and free speech rhetoric. It is not the shout of revolution to the gathered, protesting masses, or the political pamphlet flung from a 1920s window. Graffiti is not the obscene-rendered-political-jacketed protest of war, or a flag set aflame in the name of reclaiming patriotism. It is an illicit scrawl. It is damage and defiance rolled into one from the moment of its creation. Graffiti is a crime.

Unlike more celebrated examples of free speech, graffiti earns no safe harbor from the First Amendment. When asked to choose between the tag that …

Burning A Hole In The Pocket Of Justice: Prop. 66'S Underfunded Attempt To Fix California's Death Penalty, Flavia Costea

Loyola of Los Angeles Law Review

California has struggled with the administrative and financial burdens of a flawed death penalty system for decades. In an effort to save the death penalty, the voters of California enacted Proposition 66, which promised to deliver a quicker and more cost-effective system. This Article focuses on the provision of Prop. 66 that expands the number of lawyers who can act as defense lawyers for inmates on death row. While this provision superficially seems to solve the shortage of defense attorneys willing to take on death penalty cases, without significant funding, the shortage of resources and pressure to speed up executions …

Shut Up. You Don't Even Go Here.* An Examination Of First Amendment Rights For Noncitizens, Samantha Chasworth

Journal of Civil Rights and Economic Development

(Excerpt)

Section I of this Note provides background information about Pineda Cruz et al v. Thompson et al and explains the government’s argument in its Motion to Dismiss. Section II explains the First Amendment, demonstrating what it is and explaining its fundamental nature. Section III argues that noncitizens are entitled to First Amendment rights, presenting the non-speakerbased composition and character of the First Amendment. Next, this section demonstrates the many fundamental rights that noncitizens currently have in an effort to show the hole left open for the First Amendment. Next, this section describes the enormous consequences of not providing First …

Lockett Symposium: For Sandra Lockett, Anthony G. Amsterdam

ConLawNOW

Tony Amsterdam, lead counsel for Sandra Lockett in the U.S. Supreme Court case Lockett v. Ohio, offers his reflections on the case.