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Mandatory Minimum Prison Sentencing And Systemic Racism, Faizal R. Mirza

Osgoode Hall Law Journal

This article discusses the relationship between racist policing, the exercise of prosecutorial discretion, and the disproportionate imposition of mandatory prison sentences on Black-Canadians It argues that the retention and expansion of mandatory prison sentences for serious offences will serve as a powerful means to perpetuate systemic racism in the criminal justice system. Reporting and applying surveys on systemic racism in the criminal justice system, the article sets out to demonstrate that mandatory prison sentences enhance the quasi-judicial role of prosecutors, providing Crown attorneys with greater leverage to convict a disproportionate number of Black persons. In addition, it argues that if …

Mandatory Minimum Sentences And Women With Disabilities, Fiona Sampson

Osgoode Hall Law Journal

This article examines the issue of mandatory minimum sentencing from the unique perspective of women with disabilities. Concerns about the discriminatory application of mandatory minimum sentences are outlined and analyzed from a gendered disability perspective, as are concerns about the devaluation of the lives of persons with disabilities through the support of reduced sentences for those convicted of murdering persons with disabilities. This examination makes it clear that the different concerns of women with disabilities are difficult to reconcile, as they mandate contradictory positions with respect to the possible abolition of the sentencing practice. The challenges inherent in the development …

Quiet Rebellion? Explaining Nearly A Decade Of Declining Federal Drug Sentences With Michael Heise, Frank O. Bowman Iii, Michael Heise

Faculty Publications

The Article begins with an examination of three primarily empirical questions. First, is the trend real? In other words, is the apparent decrease in federal drug sentences merely a species of statistical hiccup, a random fluctuation that could move easily and rapidly in the other direction? Or is the decline in average drug sentences large enough, and the trend prolonged enough, that we can safely conclude that something meaningful is occurring?

Make Way For The Aba: Smith V. Robbins Clears A Path For Anders Alternatives, James E. Duggan, Andrew W. Moeller

The Journal of Appellate Practice and Process

Indigents appealing criminal convictions are entitled to court-appointed counsel. The American Bar Association suggests a standard for providing the required representation. This standard is known as the Idaho Rule.

No-Merit Briefs Undermine The Adversary Process In Criminal Appeals, Randall L. Hodgkinson

The Journal of Appellate Practice and Process

Appellate defense attorneys face a dilemma when faced with an appeal that has no obvious merit. No-merit briefs allow an attorney to forego an appeal when there is no apparent merit. In cases involving direct appeals from conviction, the cost of abandonment of the client far outweighs the benefits.

Criminal Law—Statutes Of Limitation On Sexual Assault Crimes: Has The Availability Of Dna Evidence Rendered Them Obsolete, Amy Dunn

University of Arkansas at Little Rock Law Review

No abstract provided.

Aboriginal Peoples And Mandatory Sentencing, Larry N. Chartrand

Osgoode Hall Law Journal

The author examines the impact of mandatory minimum sentencing on Aboriginal peoples in Canada. Emphasis is placed on the recently enacted mandatory minimum sentencing provisions for firearms offenses. The author argues that the enactment of such provisions are inconsistent with Parliament's objectives as reflected in section 718.2(e) of the Criminal Code which requires sentencing judges to pay "particular attention to the circumstances of Aboriginal offenders." In addition, the author explores preliminary arguments to support a finding that mandatory minimum sentences applied to Aboriginal offenders violate sections 12 and 15 of the Charter.

Distorting The Prosecution Process: Informers, Mandatory Minimum Sentences, And Wrongful Convictions, Dianne L. Martin

Osgoode Hall Law Journal

As the use of mandatory minimum sentences becomes more common in Canada, it is important to consider a range of potential consequences that are neither intended nor anticipated. This article considers the implications of mandatory minimum sentences in contributing to wrongful convictions. It considers the impact of these sentences on two significant processes in the criminal justice system, plea bargaining and the development of informers, and argues that both processes are vulnerable to distortions. These distortions, which include the wrongful conviction of innocent people, can be exacerbated by the threat of mandatory minimum prison sentences. In the case of plea …

The Death Penalty, Mandatory Prison Sentences, And The Eighth Amendment's Rule Against Cruel And Unusual Punishments, Jamie Cameron

Osgoode Hall Law Journal

The text of section 12 of the Canadian Charter of Rights and Freedoms and the Eighth Amendment to the United States Constitution prohibit cruel and unusual punishment in language that is similar but not identical. Still, in considering constitutional restrictions on punishment, the deviations of the Supreme Court both focus on the concept of gross disproportionality between the offence committed and the state’s response. Despite the appearance of similarity, this article maintains that differences in the American law of sentencing explain why Canada ought not follow or adopt the United States approach to minimum sentences.

Latimer: Something Ominous Is Happening In The World Of Disabled People, H. Archibald Kaiser

Osgoode Hall Law Journal

Although the Latimer decision breaks no new substantive ground, it has created a furore over the application of the mandatory minimum sentence for murder. This article maintains that, despite the pre-existing need to examine the complex range of issues in mandatory sentences, the Latimer case provides a wholly inapposite base for revisiting this sanction. The Supreme Court of Canada properly rejected the accused's attempt to invoke the defence of necessity, as well as some procedural contentions. The Court also determined that the mandatory minimum sentence for murder was not cruel and unusual punishment as applied to the accused. The reaction …

Innocence Protection Act: Death Penalty Reform On The Horizon, Ronald Weich

All Faculty Scholarship

The criminal justice pendulum may be swinging back in the direction of fairness. The Innocence Protection Act of 2001, introduced in both the Senate and the House of Representatives earlier this year, promises meaningful reforms in the administration of capital punishment in the United States.

Unlike previous slabs at reform, the Innocence Protection Act (lPA) has a real chance to become law because it commands unusually broad bipartisan support. The Senate bill (S. 486) is sponsored by Democrat Pat Leahy of Vermont and Republican Gordon Smith of Oregon. The House bill (H.R. 912) is sponsored by Democrat Bill Delahunt of …

The Political Attractiveness Of Mandatory Minimum Sentences, Anthony N. Doob, Carla Cesaroni

Osgoode Hall Law Journal

This article addresses the question of why Canada still has mandatory minimum sentences despite inquiries by a number of commissions that suggest abolition. It suggests that politicians and judges alike not only promote mandatory minimum policies, but also speak about them in much the same way - as a way of fighting crime. Though the evidence is clear that mandatory minimum sentences are not an effective crime-control strategy, and actually disrupt the sensible operation of the justice system, it is apparent that the deterrence message they deliver is still functional for politicians and is rarely challenged by judges.

Mandatory Minimum Sentences Of Imprisonment: Exploring The Consequences For The Sentencing Process, Julian V. Roberts

Osgoode Hall Law Journal

In this article, the author discusses the nature and consequences of the mandatory sentences of imprisonment created by Bill C-63 in 1995. These mandatory sentences constitute the most comprehensive collection of mandatory minima in Canadian history, and will affect significant numbers of offenders. Unlike most mandatory minima created in other jurisdictions such as Australia, England, and Wales, the legislation that created the firearms offence minima offer no provision to be invoked in exceptional cases. In this article, the author addresses the effect that these new statutory minima am likely to have on sentencing patterns It is argued that they should …

Disarming Canadians, And Arming Them With Tolerance: Banning Firearms And Minimum Sentences To Control Violent Crime--An Essay On An Apparent Contradiction, Helene Dumont

Osgoode Hall Law Journal

In an article published in French in 1997, the author offered reflections on feminism and criminal law that would allow for a better control of violent crime, without Parliament having to resort to excessively severe sentences. In this respect, she argued that there was no contradiction in supporting the radical ban of firearms in Canada, while opposing a minimum sentence of four years under the Firearms Act, which currently affects approximately ten serious Criminal Code offences. After setting out her position in favour of the "disarmament" of Canadians, the author argued that minimum sentences of four years were unconstitutional. Such …

Searching For Smith: The Constitutionality Of Mandatory Sentences, Kent Roach

Osgoode Hall Law Journal

The jurisprudence of the Supreme Court of Canada on the constitutionality of mandatory minimum sentences, from R. v. Smith to R. v. Latimer, is reviewed and assessed in light of relevant developments in constitutional law and sentencing. These include the Supreme Courts increasing interest in constitutional minimalism and corresponding reluctance to rely on hypothetical offenders and facial declarations of invalidity. The manner in which the Court's increasing concern for crime victims and fault levels has been used to justify upholding mandatory sentences is examined. The author also relates this jurisprudence to trends in sentencing, including an increasing acceptance of mandatory …

Sentencing In The States: The Good, The Bad, And The Ugly, Julie Stewart

Osgoode Hall Law Journal

Mandatory sentencing laws are responsible for the booming prison population in the United States. They are applied most frequently to crimes involving drugs and mandate harsh penalties of five, ten, twenty years or more behind bars for crimes involving no violence. Julie Stewart, President of the Families Against Mandatory Minimums Foundation (FAMM) and the sister of a marijuana user who spent five years in a federal prison, describes the unfairness of America’s sentencing policies, with a particular emphasis on the application of mandatory minimum sentences to drug-related convictions. These laws have led to a marked increase in the number of …

Battered Women And Mandatory Minimum Sentences, Elizabeth Sheehy

Osgoode Hall Law Journal

The author argues for the repeal of mandatory minimum sentences based upon their role in the distortion of defences available to battered women on trial for the homicide of their violent mates. After reviewing other legal strategies aimed at eliminating the discriminatory biases facing women who attempt to plead self-defence, and illustrating the ways in which defences to murder are distorted, she turns to the examination of the transcript of a recent murder trial for a woman who argued self-defence. The author uses the transcript to provide concrete illustrations of three ways in which self-defence is distorted by the mandatory …

No One Can Serve Two Masters: Arguments Against Private Prosecutors, Matthew S. Nichols

Capital Defense Journal

No abstract provided.

Establishing A Capital Defense Unit In Virginia: A Proposal To Increase The Quality Of Representation For Indigent Capital Defendants, Jeremy P. White

Capital Defense Journal

No abstract provided.

Ohler V. United States: Defendants Waive Appellate Review By Reducing The Sting Of Prior Conviction Impeachment Evidence, Misty Dawn Garrett

Mercer Law Review

In Ohler v. United States, the United States Supreme Court adopted a per se waiver rule holding that a defendant waives the right to appeal an in limine ruling permitting the government to impeach the defendant with evidence of a prior conviction when the defendant introduced the evidence on direct examination in an effort to reduce the sting of the evidence.

Cowboy Prosecutors And Subpoenas For Incriminating Evidence: The Consequences And Correction Of Excess, Robert P. Mosteller

Washington and Lee Law Review

No abstract provided.

Miranda, The Constitution, And Congress, David A. Strauss

Michigan Law Review

Are Miranda warnings required by the Constitution, or not? If they are, why has the Supreme Court repeatedly said that the rights created by Miranda are "not themselves rights protected by the Constitution"? If not, why can't an Act of Congress, such as 18 U.S.C. 3501, declare them to be unnecessary? These were the central questions posed by United States v. Dickerson. It is not clear that the majority opinion ever really answered them. The majority said that "Miranda is constitutionally based," that Miranda has "constitutional underpinnings," that Miranda is "a constitutional decision," and that Miranda "announced a constitutional rule." …

Miranda'S Mistake, William J. Stuntz

Michigan Law Review

The oddest thing about Miranda is its politics - a point reinforced by the decision in, and the reaction to, Dickerson v. United States. In Dickerson, the Supreme Court faced the question whether Miranda ought to be overturned, either directly or by permitting legislative overrides. The lawyers, the literature, and the Court split along right-left - or, in the Court's case, right-center - lines, with the right seeking to do away with Miranda's restrictions on police questioning, and the left (or center) seeking to maintain them. The split is familiar. Reactions to Miranda have always divided along ideological lines, with …

Establishing Uniformity: The Need For A Per Se Rule Against The Grouping Of Money Laundering And Fraud Counts Under The Federal Sentencing Guidelines, Eric C. Tew

William & Mary Law Review

No abstract provided.

The Troubling Influence Of Equality In Constitutional Criminal Procedure: From Brown To Miranda, Furman And Beyond, Scott W. Howe

Vanderbilt Law Review

This Article identifies and critiques a view of the criminal-procedure clauses in the Bill of Rights that is revealed in Supreme Court decisions after Brown v. Board of Education. Professor Howe argues that the Court has gone astray in constructing these clauses by focusing on equality. He contends that the criminal-procedure clauses are better understood as discrete protections of individual liberty than as reflecting a unified theory or separate theories about equality. Building on this perspective, the Article proposes a reformulation of doctrine in varied realms of constitutional criminal procedure, including police -interrogation, capital sentencing, and administrative searches and seizures. …

The Paths Not Taken: The Supreme Court's Failures In Dickerson, Paul G. Cassell

Michigan Law Review

Where's the rest of the opinion? That was my immediate reaction to reading the Supreme Court's terse decision in Dickerson, delivered to me via email from the clerk's office a few minutes after its release. Surely, I thought, some glitch in the transmission had eliminated the pages of discussion on the critical issues in the case. Yet, as it became clear that I had received all of the Court's opinion, my incredulity grew.

Miranda, Dickerson, And The Puzzling Persistence Of Fifth Amendment Exceptionalism, Stephen J. Schulhofer

Michigan Law Review

Dickerson v. United States preserves the status quo regime for judicial oversight of police interrogation. That result could be seen, in the present climate, as a victory for due process values, but there remain many reasons for concern that existing safeguards are flawed - that they are either too restrictive or not restrictive enough. Such concerns are partly empirical, of course. They depend on factual assessments of how much the Miranda rules do restrict the police. But such concerns also reflect a crucial, though often unstated, normative premise; they presuppose a certain view of how much the police should be …

Questioning The Relevance Of Miranda In The Twenty-First Century, Richard A. Leo

Michigan Law Review

Miranda v. Arizona is the most well-known criminal justice decision - arguably the most well-known legal decision - in American history. Since it was decided in 1966, the Miranda decision has spawned voluminous newspaper coverage, political and legal debate, and academic commentary. The Miranda warnings themselves have become so well-known through the media of television that most people recognize them immediately. As Patrick Malone has pointed out, the Miranda decision has added its own lexicon of words and phrases to the American language. Perhaps with this understanding in mind, George Thomas recently suggested that the Miranda warnings are more well-known …

Identifying And (Re)Formulating Prophylactic Rules, Safe Harbors, And Incidental Rights In Constitutional Criminal Procedure, Susan R. Klein

Michigan Law Review

The Miranda conundrum runs something like this. If the Miranda decision represents true constitutional interpretation, and all unwarned statements taken during custodial interrogation are "compelled" within the meaning of the Self-Incrimination Clause, the impeachment and "fruits" exceptions to Miranda should fall. If it is not true constitutional interpretation, than the Court has no business reversing state criminal convictions for its violation. I offer here what I hope is a satisfying answer to this conundrum, on both descriptive and normative levels, that justifies not only Miranda but a host of similar Warren, Burger, and Rehnquist Court decisions as well. In Part …

Separated At Birth But Siblings Nonetheless: Miranda And The Due Process Notice Cases, George C. Thomas Iii

Michigan Law Review

Paraphrasing Justice Holmes, law is less about logic than experience. Courts and scholars have now had thirty-four years of experience with Miranda v. Arizona, including the Court's recent endorsement in Dickerson v. United States last Term. Looking back over this experience, it is plain that the Court has created a Miranda doctrine quite different from what it has said it was creating. I think the analytic structure in Dickerson supports this rethinking of Miranda. To connect the dots, I offer a new explanation for Miranda that permits us to reconcile Dickerson and the rest of the post-Miranda doctrine with the …