Digital Commons Network^™

Sound Principles, Undesirable Outcomes: Justice Scalia's Paradoxical Eighth Amendment Jurisprudence, Mirko Bagaric, Sandeep Gopalan

Akron Law Review

Justice Scalia is renowned for his conservative stance on the Eighth Amendment and prisoners’ rights. Justice Scalia held that the Eighth Amendment incorporates no proportionality requirement of any nature regarding the type and duration of punishment which the state can inflict on criminal offenders. Justice Scalia has also been labelled as “one of the Justices least likely to support a prisoner’s legal claim” and as adopting, because of his originalist orientation, “a restrictive view of the existence of prisoners’ rights.” A closer examination of the seminal judgments in these areas and the jurisprudential nature of the principle of proportionality and …

Justice Scalia As Neither Friend Nor Foe To Criminal Defendants, Tung Yin

Akron Law Review

At first glance, Justice Scalia may appear to have been something of a “friend” to criminal defendants, as he authored a number of opinions ruling against law enforcement. However, his opinions reflect his fidelity to his constitutional vision of originalism rather than an intent to favor criminal defendants. Nevertheless, these cases are often offered as legitimate examples of how he did not have a purely results-oriented approach to deciding criminal procedure issues. Yet, a closer examination of Justice Scalia’s “defendant-favorable” opinions suggests that the results often have an air of unreality to them. In practice, there is no way for …

A Comment On Christopher Johnson's "Post-Trial Judicial Review Of Criminal Convictions: A Comparative Study Of The United States And Finland", Malick W. Ghachem

Maine Law Review

Christopher Johnson has dug deeply into a neglected corner of comparative law and emerged with some fascinating and important contrasts. Finland does not appear often on the radar screen of American legal scholars, even those who primarily focus is comparative law. And so we are indebted to Johnson for reminding us that critical comparative insights can arise out of studying the experiences of nations deemed “marginal” to the international system, and to mainstream comparative law scholarship (which itself occupies a position of uncertain import in American legal scholarship generally). Johnson’s findings are all the more significant because they come from …

Pushing The Limits: Reining In Ohio's Residency Restrictions For Sex Offenders, Taurean J. Shattuck

Cleveland State Law Review

The danger to children posed by convicted sex offenders living near schools, parks, and bus stops has been greatly exaggerated by the media. In turn, many state legislatures have attempted to find solutions to this perceived problem, imposing sanctions that seem to keep the "problem" at bay. A relatively new approach prevents those convicted of sex crimes from living within a certain distance of places where children congregate. Ohio is one of the states that has adopted this approach. The problem with this approach, however, is that imposing such restrictions on all individuals convicted of certain crimes imposes barriers to …

Today's Porn: Not A Constitutional Right; Not A Human Right, Patrick Trueman

Dignity: A Journal of Analysis of Exploitation and Violence

No abstract provided.

Anselmo V. Bisbee, 133 Nev. Adv. Op. 45 (Jun. 29, 2017), Marco Luna

Nevada Supreme Court Summaries

The Nevada Parole Board can deny parole for any reason authorized by regulation or statute. However, inmates do have a statutory right to have a parole hearing under NRS 213.140(1). Therefore, in limited cases where the Nevada Parole Board clearly misapplied its own internal guidelines in assessing whether to grant parole to an inmate, a new parole hearing is warranted.

“They Teach You How To Weather The Storm, But They Don’T Teach You How To Dance In The Rain:” Veterans’ Perspectives On The Pathways To Criminal Justice Involvement, Kelli E. Canada, Clark Peters

Qualitative Criminology (QC)

"Some veterans face elevated risk of mental illness, alcohol, and drug use, and difficulty adjusting post-deployment, which can increase the risk of homelessness and contact with the criminal justice system (Elbogen et al., 2012). This study adds to the limited and mixed findings regarding factors associated with criminal offending among veterans. It explores, from veterans’ perspectives, what contributes to their criminal justice involvement. In-depth interviews with 28 U.S. Veterans on probation or parole explored their military service, mental health, and the events surrounding arrests. Findings indicate that substance use was a significant contributor to arrests. Alcohol and drugs were used …

Michel Foucault, Discipline & Punish: The Birth Of The Prison, Trans. Alan Sheridan, Brian Sellers

Qualitative Criminology (QC)

"For hundreds of years, criminologists and penologists alike have investigated the various functions and designs, as well as the policies and practices that regulate the effectiveness of prisons as correctional institutions. The ideological aims underpinning penal practice can be either myopically focused or quite diverse as they reflect the varying goals of retribution, deterrence, incapacitation, and rehabilitation. However, as corrections continue to undergo numerous reforms, scholars and policymakers might do well to revisit, critically reflect upon, and reexamine the socio-historical origins of the prison and its close relationship to power structures operating in the wider society. French philosopher, Michel Foucault’s …

Beyond The Money: Expected (And Unexpected) Consequences Of America's War On Drugs, Cynthia Brown

Lincoln Memorial University Law Review Archive

The purpose of this paper is to provide a high-level survey of our nation’s prohibition policies within the context of the costs of the law enforcement efforts upholding those policies. The discussion will offer a cursory review of the economic expense of the war on drugs with tangential coverage of the constitutional, institutional and intangible expenses that are inseparable from an assessment of the costs of America’s drug control efforts. Part I provides a historical review of illicit drug use in the United States, while Part II supplies the evolution of the country’s efforts to codify its drug control policies. …

Pre- And Post- Conviction Dna Collection Laws In The United States: An Analysis Of Proposed Model Statutes, Xiaochen Hu, Mai E. Naito, Rolando V. Del Carmen

Journal of Criminal Justice and Law

DNA is one of the most powerful molecular tools being widely used in criminal investigations today. Pre- and post-conviction DNA collection laws govern when DNA must be collected, where it is stored, and who has access to the information. Currently, all fifty states have post-conviction DNA collection laws, but only thirty states have enacted pre-conviction DNA collection laws. Details of the procedures and requirements in state statutes vary by state. This study analyzes the current statutes to identify strengths and weaknesses and propose a model statute to standardize DNA collection laws nationwide. By using Herbert Packer’s two models for criminal …

The Impact Of Incarceration And Societal Reintegration On Mental Health, Veronica Wicks

Electronic Theses, Projects, and Dissertations

The purpose of this study was to examine ex-offender’s beliefs on the impact of incarceration and societal reintegration on mental health. The study is a qualitative design using interviews that were audio recorded and transcribed for analysis. The study sought to address the relationship between perceptions of mental health and experiences of incarceration and reintegration among formerly incarcerated individuals. The following themes emerged from participant responses: incarceration challenges, mental health stigma, and rehabilitation service accessibility. The findings of this study may contribute to social work practice by providing awareness to the factors impacting ex-offenders’ mental health and interventions needed. The …

Illegal Marijuana Cultivation On Public Lands: Our Federalism On A Very Bad Trip, Hope M. Babcock

Georgetown Law Faculty Publications and Other Works

Fueled by increasing demand for marijuana, illegal cultivation of the drug on public lands is causing massive environmental harm. The federal government lacks the resources to wage what would be a difficult and costly campaign to eradicate these illegal grow sites and instead focuses its limited resources on enforcing the federal marijuana ban. Marijuana decriminalization might allow legally grown marijuana to squeeze out its illegal counterpart, but the political likelihood of decriminalization is low. The key is reducing demand for the illegal drug by changing public buying preferences. However, doing this depends on an available legal alternative. This Article discusses …

Injustice Under Law: Perpetuating And Criminalizing Poverty Through The Courts, Judge Lisa Foster

Georgia State University Law Review

Money matters in the justice system. If you can afford to purchase your freedom pretrial, if you can afford to immediately pay fines and fees for minor traffic offenses and municipal code violations, if you can afford to hire an attorney, your experience of the justice system both procedurally and substantively will be qualitatively different than the experience of someone who is poor. More disturbingly, through a variety of policies and practices—some of them blatantly unconstitutional—our courts are perpetuating and criminalizing poverty. And when we talk about poverty in the United States, we are still talking about race, ethnicity, and …

A Promise Unfulfilled: Challenges To Georgia’S Death Penalty Statute Post-Furman, William Cody Newsome

Georgia State University Law Review

In Furman v. Georgia, the U.S. Supreme Court agreed with Furman’s counsel. Three Justices agreed that Georgia law, as applied, was arbitrary and potentially discriminatory. Moreover, one Justice challenged the value of the death penalty and doubted it served any of the alleged purposes for which it was employed.

Although many challenges subsequent to Furman have been raised and arguably resolved by the Court, the underlying challenges raised by Furman appear to remain prevalent with the Court. Justice Breyer recently echoed the concurring opinions of Furman in his dissenting opinion from Glossip v. Gross, when he stated: “In …

Rwu First Amendment Blog: Andrew Horwitz's Blog: First Amendment Protects The Right To Give And To Receive 05-23-2017, Andrew Horwitz

Law School Blogs

No abstract provided.

A Comparative Approach To Counter-Terrorism Legislation And Legal Policy, Paul David Hill Jr

Senior Honors Theses

Since the 9/11 attacks, American legislation and legal policy in regards to classifying and processing captured terrorists has fallen short of being fully effective and lawful. Trial and error by the Bush and Obama administrations has uncovered two key lessons: (1) captured terrorists are not typical prisoners of war and thus their detainment must involve more legal scrutiny than the latter; and (2) captured terrorists are not ordinary criminals and thus the civilian criminal court system, due to constitutional constraints, is not capable of adequately trying every count of terrorism. Other nations, including France and Israel, approach this problem with …

Moral Crimes Post-Mellouli: Making A Case For Eliminating State-Based Prostitution Convictions As A Basis For Inadmissibility In Immigration Proceedings, Kerry Q. Battenfeld

Buffalo Law Review

No abstract provided.

Crimmigration: The Missing Piece Of Criminal Justice Reform, Yolanda Vazquez

University of Richmond Law Review

This article discusses the impact that the incorporation of migration enforcement has had on the criminal justice system and the way in which it has exacerbated pre-existing problems within it. Part I discusses the drastic expansion of the criminal justice system over the last forty years and the fiscal and moral costs it has had. Part II discusses how crimmigration has impacted the criminal justice system, its laws, policies, and practices during the last thirty years. Part III discusses the rise of the Smart on Crime movement and the goals of the criminal justice reform efforts to combat its detrimental …

Virginia Executioner To Wear A Cloak: Diversion From The Real Controversy, Paul G. Gill

University of Richmond Law Review

No abstract provided.

"Plausible Cause": Explanatory Standards In The Age Of Powerful Machines, Kiel Brennan-Marquez

Vanderbilt Law Review

Much scholarship in law and political science has long understood the U.S. Supreme Court to be the "apex" court in the federal judicial system, and so to relate hierarchically to "lower" federal courts. On that top-down view, exemplified by the work of Alexander Bickel and many subsequent scholars, the Court is the principal, and lower federal courts are its faithful agents. Other scholarship takes a bottom-up approach, viewing lower federal courts as faithless agents or analyzing the "percolation" of issues in those courts before the Court decides. This Article identifies circumstances in which the relationship between the Court and other …

From Grace To Grids: Rethinking Due Process Protections For Parole., Kimberly A. Thomas, Paul D. Reingold

Articles

Current due process law gives little protection to prisoners at the point of parole, even though the parole decision, like sentencing, determines whether or not a person will serve more time or will go free. The doctrine regarding parole, which developed mostly in the late 1970s, was based on a judicial understanding of parole as an experimental, subjective, and largely standardless art—rooted in assessing the individual “character” of the potential parolee. In this Article we examine the foundations of the doctrine, and conclude that the due process inquiry at the point of parole should take into account the stark changes …

Jail Isolation After Kingsley: Abolishing Solitary Confinement At The Intersection Of Pretrial Incarceration And Emerging Adulthood, Deema Nagib

Fordham Law Review

In 2015, the U.S. Supreme Court held that allegations of excessive use of force in pretrial detention are subject to an objective standard. However, it is unclear whether the objective standard extends to claims arising out of different factual circumstances. The Second Circuit’s recent decision in Darnell v. Pineiro to extend Kingsley v. Hendrickson to conditions-of- confinement cases provides hope. This Note argues that Kingsley should extend to solitary confinement litigation—particularly the isolation of emerging adults in pretrial detention. Solitary confinement is a widespread practice in the criminal justice system, but the implications of its use in pretrial detention have …

The Unconstitutional Application Of Apprehension And Detention Laws: Section 236(C) Of The Immigration And Nationality Act, Rigoberto Ledesma

The Scholar: St. Mary's Law Review on Race and Social Justice

Abstract forthcoming.

Air Traffic Control: How Mexican Cartels Are Utilizing Drones To Traffic Narcotics Into The United States, Britton Shields

Penn State Journal of Law & International Affairs (2012 - Present)

No abstract provided.

Find My Criminals: Fourth Amendment Implications Of The Universal Cell Phone "App" That Every Cell Phone User Has But No Criminal Wants, Christopher Joseph

Barry Law Review

No abstract provided.

Fighting Fines & Fees: Borrowing From Consumer Law To Combat Criminal Justice Debt Abuses, Neil L. Sobol

Faculty Scholarship

Although media and academic sources often describe mass incarceration as the primary challenge facing the American criminal justice system, the imposition of criminal justice debt may be a more pervasive problem. On March 14, 2016, the Department of Justice (DOJ) requested that state chief justices forward a letter to all judges in their jurisdictions describing the constitutional violations associated with the illegal assessment and enforcement of fines and fees. The DOJ’s concerns include the incarceration of indigent individuals without determining whether the failure to pay is willful and the use of bail practices that result in impoverished defendants remaining in …

State V. Mcpartland: Applying The Reasonable Articulable Suspicion Standard To Secondary Screening Referrals At Sobriety Checkpoints In Maine And The Proper Role Of The Law Court In Reviewing A Trial Court's Application Of This Standard, Holly L. Doherty

Maine Law Review

In State v. McPartland, Mallory McPartland challenged her conviction for operating under the influence, arguing that the trial court erred when it denied her motion to suppress evidence obtained in a sobriety checkpoint that led to her arrest. In a 4-3 decision, the Supreme Judicial Court of Maine, sitting as the Law Court, affirmed the judgment against McPartland. This case centered on a matter of first impression in Maine—what constitutional standard should a law enforcement officer apply when determining whether a motorist, lawfully stopped at a sobriety checkpoint, may be kept for secondary screening? The majority concluded, and the dissent …

Domestic Violence And Enforcement Of Protection From Abuse Orders: Simple Fixes To Help Prevent Intra-Family Homicide, Nicole R. Bissonnette

Maine Law Review

Domestic violence has long been recognized as a pressing law enforcement and societal concern, and both federal and state governments have continued to pursue strategies to address the issue. Beyond the criminal threatening, assaults, batteries, and other physical atrocities that victims face, domestic violence provides an added horror—“obliterating personhood, suspending identity and nullifying any notion of personal autonomy.” To address these concerns, legislatures created Protection from Abuse Orders (hereinafter PFAs), to protect those that have been subject to abuse from trusted family members or dating partners. Unfortunately, victims then place their trust in the system, which often fails to deter …

'Freedom Of Expression From The 'Age Of Extremes' To The 'Age Of Terror': Reflections On Public Order Law And The Legal Responses To Political And Religious Extremism In 1930s Britain And The Post 9/11, Iain Channing

SOLON Law, Crime and History (previously SOLON Crimes and Misdemeanours: Deviance and the Law in Historical Perspective)

This paper highlights some of the legal responses to political extremism in the 1930s and the modern challenge of international terrorism and extreme right-wing activism. In particular, it focuses on restrictions to freedom of expression, the tactics and responses employed by the police and the subsequent judgments of the judiciary. During the interwar years, the activities of extremist political parties caused major disruption to public order. Public meetings, marches and demonstrations organised by the British Union of Fascists (BUF), the Communist Party of Great Britain (CPGB) and anti-fascist protestors created new challenges for the authorities. Despite fears that new legislation …

People V. Selikoff: The Route To Rational Plea Bargaining, John F. Byrne

The Catholic Lawyer

No abstract provided.