Digital Commons Network^™

About The Authors

Seattle Journal for Social Justice

No abstract provided.

Symposium Foreword: Bombshell Or Baby Step? The Ramifications Of Miller V. Alabama For Sentencing Law And Juvenile Crime Policy, Paul J. Litton

Faculty Publications

This short essay, which serves as the Symposium Foreword, argues that the rationale of Miller is incoherent insofar as it permits juvenile LWOP sentences and that the Court misidentifies the foundational principle of Roper. First, in banning mandatory juvenile LWOP sentences, the Court invokes Woodson, which bans mandatory death sentences. The Court maintains that Woodson, from its capital jurisprudence, applies because juvenile LWOP is “akin to the death penalty” for juveniles. But if the Court’s capital jurisprudence is binding based on that equivalence, Roper should imply that juvenile LWOP, like the death penalty, is unconstitutional for juveniles. This essay briefly …

Banished For Life: Deportation Of Juvenile Offenders As Cruel And Unusual Punishment, Beth Caldwell

Cardozo Law Review

No abstract provided.

Order, Technology And The Constitutional Meanings Of Criminal Procedure, Thomas P. Crocker

Faculty Publications

No abstract provided.

Shoot To Kill: A Critical Look At Stand Your Ground Laws, Tamara Rice Lave

University of Miami Law Review

No abstract provided.

The Plea-Bargain Crisis For Noncitizens In Misdemeanor Court, Jason A. Cade

Cardozo Law Review

This Article considers three factors contributing to a plea-bargain crisis for noncitizens charged with misdemeanors: 1) the expansion of deportation laws to include very minor offenses with little opportunity for discretionary relief from removal; 2) the integration of federal immigration enforcement programs with the criminal justice system; and 3) the institutional norms in non-federal lower criminal courts, where little attention is paid to evidence or individual equities and where bail and other process costs generally outweigh perceived incentives to fight charges. The Article contends that these factors increase the likelihood that a noncitizen's low-level conviction will not reliably indicate guilt …

Searching For Solutions To The Indigent Defense Crisis In The Broader Criminal Justice Reform Agenda, Roger Fairfax

Scholarly Articles in Law Reviews & Journals

As we mark the fiftieth anniversary of the Gideon v. Wainwright decision, the nearly universal assessment is that our indigent defense system remains too under-resourced and overwhelmed to fulfill the promise of the landmark decision, and needs to be reformed. At the same time, fiscal necessity and moral outrage have prompted a historic reexamination of outdated policies that have led to an overreliance on incarceration and inefficiencies in the administration of criminal justice. This Essay argues that there are synergies between the indigent defense reform agenda and the broader criminal justice reform agenda, which places a premium on cost-effective, evidence-based, …

The Admissibility Of Cell Site Location Information In Washington Courts, Ryan W. Dumm

Seattle University Law Review

This Comment principally explores when and how a party can successfully admit cell cite location information into evidence. Beginning with the threshold inquiry of relevance, Part III examines when cell site location information is relevant and in what circumstances the information, though relevant, could be unfairly prejudicial, cumulative, or confusing. Part IV provides the bulk of the analysis, which centers on the substantive foundation necessary to establish the information’s credibility and authenticity. Part V looks at three ancillary issues: hearsay, a criminal defendant’s Sixth Amendment confrontation rights, and the introduction of a summary of voluminous records. Finally, Part VI offers …

“Lonesome Road”: Driving Without The Fourth Amendment, Lewis R. Katz

Seattle University Law Review

The protections of the Fourth Amendment on the streets and highways of America have been drastically curtailed. This Article traces the debasement of Fourth Amendment protections on the road and how the Fourth Amendment’s core value of preventing arbitrary police behavior has been marginalized. This Article contends that the existence of a traffic offense should not be the end of the inquiry but the first step, and that defendants should be able to challenge the reasonableness even when there is proof of a traffic offense.

Federal Criminal Discovery Reform: A Legislative Approach, Bruce A. Green

Mercer Law Review

Suppose that federal prosecutors have conducted an investigation culminating in an indictment. Although the prosecutors believe that they have enough evidence to secure a conviction and are personally convinced that the defendant is guilty, some of the evidence they have collected is favorable to the defendant, because it tends to show that the defendant is innocent or that prosecution witnesses should not be believed. Must prosecutors disclose the favorable evidence to defense counsel to use in investigating, advising the defendant, plea negotiations, or trial? Under current federal law, the answer is generally "no." Unless favorable evidence falls within one of …

The Proposed Fairness In Disclosure Of Evidence Act Of 2012: More Cons Than Pros With Proposed Disclosure Requirements In Federal Criminal Cases, Jacquelyn Smith

Mercer Law Review

The proposed Fairness in Disclosure of Evidence Act of 2012 (the Act) is a proposal of uniform standards for disclosing evidence in federal criminal cases that was introduced on March 15, 2012 by Senator Lisa Murkowski of Alaska.' The Act's stated purpose is: "To require the attorney for the Government to disclose favorable information to the defendant in criminal prosecutions brought by the United States, and for

How Administrative Law Halted The Death Penalty In Maryland , Arnold Rochvarg

Journal of the National Association of Administrative Law Judiciary

Numerous arguments have been raised to halt the death penalty, including constitutional claims such as ineffective assistance of counsel, equal protection, right to trial by jury, and cruel and unusual punishment. The winning argument, however, in Evans v. State, a Maryland death penalty appeal, was based not on constitutional or criminal law, but rather Administrative Law. A death row inmate attacked the validity of the procedures for administering lethal injection capital punishment because the Maryland Department of Corrections had not followed the proper statutory procedures for adopting the regulation which set forth the capital punishment process. In order for a …

Two Rights To Counsel, Josh Bowers

Washington and Lee Law Review

No abstract provided.

Criminal Defense Lawyer Moneyball: A Demonstration Project, Ronald F. Wright, Ralph A. Peeples

Washington and Lee Law Review

No abstract provided.

Getting Real About Gideon: The Next Fifty Years Of Enforcing The Right To Counsel, Cara H. Drinan

Washington and Lee Law Review

No abstract provided.

Mackey V. Montrym: Clarification On A Matter Of Timing , Alan J. Cohen

Pepperdine Law Review

No abstract provided.

Proposition 8: California Law After In Re Lance W. And People V. Castro, Mark Dyer Klein, Randall A. Cohen

Pepperdine Law Review

Until recently, California provided a relatively high level of constitutional protection to criminal defendants. With the passage of Proposition 8 in 1982, the California voters expressed their desire to decrease this level of protection in order to remove impediments to the effective prosecution of criminally accuseds. This comment will examine two of the major provisions of Proposition 8 and their effect on California law in light of major cases decided by the California Supreme Court in 1985.

Evidence Of Mental Disorder On Mens Rea: Constitutionality Of Drawing The Line At The Insanity Defense , Harlow M. Huckabee

Pepperdine Law Review

No abstract provided.

Re-Thinking Minnesota's Criminal Justice Response To Sexual Violence Using A Prevention Lens, Caroline Palmer, Bradley Prowant

Symposium: 50th Anniversary of the Minnesota Criminal Code-Looking Back and Looking Forward

Sexual violence is one of the most difficult issues we face in the human condition. Even with the many strides that have occurred in recent years to support a victim-centered response, survivors who seek help from the legal, medical and mental health systems, among others still “may face disbelief, blame, and refusals of help instead of assistance.” It is a problem that demands a response from all levels of society. And yet this response is lacking.

The key question we as a society confront is what changes will satisfactorily balance justice for victims with offender accountability, attempts at rehabilitation through …

Quarreling Over Quarles: Limiting The Extension Of The Public Safety Exception, Andrew T. Winkler

Richmond Journal of Law and the Public Interest

This article addresses the issue of whether the Quarles public safety exception applies after a suspect invokes his Fifth Amendment right to counsel. Due to the lack of guidance in the Quarles opinion, lower courts have expressed confusion as to whether the public safety exception applies to Edwards. Several courts have extended the exception, including the U.S. Court of Appeals for the Fourth and Ninth Circuits, while some state appellate courts have declined to do so. Part II of this article provides the requisite background for understanding Miranda's Fifth Amendment right to counsel, the Edwards rule, and the Quarles public …

Life, Liberty, And The Pursuit Of Justice: A Comparative Legal Study Of The Amanda Knox Case, Danielle Lenth

McGeorge Law Review

No abstract provided.

Changing Tides: An Adaptable Prosecution Approach To Piracy’S Shifting Problem, Jessica Piquet

National Security Law Program

Although piracy off the coast of Somalia has captured worldwide attention, attacks in this region are decreasing while other regions are experiencing increases in pirate activity. This Note expands upon prior research into prosecution models for combatting piracy off the coast of Somalia to determine the adaptability and sustainability of these methods as applied to piracy in other regions. In examining the three most common prosecution models currently used and proposed (prosecution by domestic courts in regional states, prosecution by the capturing state or by a state with a significant nexus to the attack, and prosecution by a specialized piracy …

Regression To The Mean: How Miranda Has Become A Tragicomical Farce, Alfredo Garcia

St. Thomas Law Review

In my original article, I examined Miranda's historical and social background, discussed its precursors, traced the evolution of the case, and documented the dismantling of the Miranda doctrine. I also argued that the doctrine's "seductive appeal" lulled defense counsel into a false sense of security, thereby deflecting reliance on the "voluntariness" standard as a failsafe to Miranda. Further, I maintained that a waiver of Miranda in some instances served to sanitize an otherwise involuntary confession. Finally, I proposed to "do away" with Miranda, to return to the voluntariness standard with one caveat: that the government be precluded from relying on …

The Procedural Due Process Rights Of The Stigmatized Prisoner, Lindsey Webb

Sturm College of Law: Faculty Scholarship

This Article addresses the role of stigma in procedural due process claims brought by prisoners. In particular, the Article focuses on inmates whom prisons have classified as sexual offenders although they have never been convicted of a sex offense. Prisons label these inmates—identified here as the “branded class”—as sexual offenders based on information outside of the inmates’ conviction histories, including charges that ended in dismissal or acquittal. As a result of the sex offender classification, prisons impose upon the branded class a wide range of sex offender-specific conditions, including mandatory treatment and sex offender registration.

In addressing procedural due process …

Innocent Until Presumed Guilty: Florida’S Mistreatment Of Mens Rea And The Presumption Of Innocence In Drug Possession Cases, 46 J. Marshall L. Rev. 1157 (2013), Sean Mullins

UIC Law Review

No abstract provided.

Clever Contraband: Why Illinois’ Lockstep With The U.S. Supreme Court Gives Police Authority To Search The Bowels Of Your Vehicle, 47 J. Marshall L. Rev. 425 (2013), Jason Cooper

UIC Law Review

No abstract provided.

Katz On A Hot Tin Roof: Saving The Fourth Amendment From Commercial Conditioning By Reviving Voluntariness In Disclosures To Third Parties, Mary Graw Leary

Scholarly Articles

In a world in which Americans are tracked on the Internet, tracked through their cell phones, tracked through the apps they purchase, and monitored by hundreds of traffic cameras, privacy is quickly becoming nothing more than a quaint vestige of the past.

In a previous article discussing the intersection of technology and the Fourth Amendment, I proposed reframing the issue away from conventional commentary. The Missed Opportunity of United States v. Jones: Commercial Erosion of Fourth Amendment Protection in a Post-Google Earth World, 15 PENN. J. CON. L. 331, 333 (2012). That article posits that society has reached the point …

Getting Real About Gideon: The Next Fifty Years Of Enforcing The Right To Counsel, Cara H. Drinan

Scholarly Articles

As we mark the fiftieth anniversary of Gideon, in this Article I argue that we can and should be more realistic in our efforts to enforce the right to counsel. Assuming, as many now do, that five decades of resource-starved indigent defense will likely continue in the future, where are our efforts most effectively deployed in the years to come? I address that question in three parts. Part II briefly acknowledges the entrenched crisis in indigent defense that is as old as the Gideon decision itself. Part III examines the most salient reform efforts of the last fifty years, highlighting …

Evidence-Based Sentencing And The Scientific Rationalization Of Discrimination, Sonja B. Starr

Law & Economics Working Papers

This paper critiques, on legal and empirical grounds, the growing trend of basing criminal sentences on actuarial recidivism risk prediction instruments that include demographic and socioeconomic variables. I argue that this practice violates the Equal Protection Clause and is bad policy: an explicit embrace of otherwise-condemned discrimination, sanitized by scientific language. To demonstrate that this practice should be subject to heightened constitutional scrutiny, I comprehensively review the relevant case law, much of which has been ignored by existing literature. To demonstrate that it cannot survive that scrutiny and is undesirable policy, I review the empirical evidence underlying the instruments. I …

Do Sexually Violent Predator Laws Violate Double Jeopardy Or Substantive Due Process? An Empirical Inquiry, Tamara Rice Lave, Justin Mccrary

Articles

No abstract provided.