Digital Commons Network^™

Are Private Prisons To Blame For Mass Incarceration And Its Evils? Prison Conditions, Neoliberalism, And Public Choice, Hadar Aviram

Faculty Scholarship

No abstract provided.

Defining And Punishing Offenses Against Treaties, William S. Dodge, Sarah H. Cleveland

Faculty Scholarship

No abstract provided.

The Hidden Life Of Andrew Taslitz, Frank H. Wu

Faculty Scholarship

No abstract provided.

Monitoring Youth: The Collision Of Rights And Rehabilitation, Kate Weisburd

Faculty Scholarship

A monumental shift in juvenile justice is underway, inspired by the wide recognition that incarceration is not the solution to youth crime. In its place, “electronic monitoring” has gained widespread support as a new form of judicial control over youth offenders. Supporters herald it as “jail-togo”: a cost-efficient alternative to incarceration that allows youth to be home while furthering rehabilitative and deterrent goals. But despite electronic monitoring’s intuitive appeal, virtually no empirical evidence suggests its effectiveness. Instead, given the realities of adolescent development, electronic monitoring may lead to more harm than good. This Article is the first to examine the …

A Genuine Civil Justice Crisis?, Richard L. Marcus

Faculty Scholarship

No abstract provided.

The Role Of Law And Lawyers For Disaster Victims: A Uc Hastings-Waseda Symposium On The Legal Aftermath Of The Fukushima Daiichi Nuclear Power Station Disaster – Introduction To The Symposium Issue, Setsuo Miyazawa

Faculty Scholarship

No abstract provided.

Mandating Discretion: Juvenile Sentencing Schemes After Miller V. Alabama, Jennifer S. Breen, John Mills

Faculty Scholarship

No abstract provided.

Trust In Immigration Enforcement: State Noncooperation And Sanctuary Cities After Secure Communities, Ming Hsu Chen

Faculty Scholarship

No abstract provided.

Reorienting Restorative Justice: Initiating A New Dialogue Of Rights Consciousness, Community Empowerment And Politicization, Thalia Gonzalez

Faculty Scholarship

For the last three decades scholars have explored the practice of restorative justice as a crime control mechanism in a multitude of settings. Much of the discourse has focused on restorative justice as an alternative to traditional punitive and retributive criminal justice processes. Whether restorative or punitive, criminal justice processes that seek to address harm are not apart, above, or outside social, cultural and political relations. This Article seeks to initiate a new dialogue of justice and argues that the ontology of restorative justice should to be viewed to include a liberatory moment of politicization focused on promoting equality and …

The Trans Panic Defense: Masculinity, Heteronormativity, And The Murder Of Transgender Women, Cynthia Lee

UC Law Journal

When a heterosexual man is charged with murdering a transgender woman with whom he has been sexually intimate, one defense strategy is to assert what has been called the trans panic defense. The defendant claiming this defense will say that the discovery that the victim was biologically male provoked him into a heat of passion causing him to lose self-control. If the jury finds that the defendant was actually and reasonably provoked, it can acquit him of murder and find him guilty of the lesser offense of voluntary manslaughter. The trans panic defense strategy is troubling because it appeals to …

Unbranding Confrontation As Only A Trial Right, Shaakirrah R. Sanders

UC Law Journal

This Article challenges the oft-cited but unpersuasive rule that the Sixth Amendment Confrontation Clause only applies at the trial stage of a “criminal prosecution.” I examine the most likely interpretation of the term “criminal prosecution” at the time of the Founding and conclude that the term would have included felony sentencing. I explore the Counsel Clause’s early rejection of the “trial-right-only” rule and the recent erosion of the “trial-right-only” rule with regard to the Jury Trial Clause in Alleyne v. United States. I advocate for eliminating the trial-right-only theory of the Confrontation Clause to allow cross-examination of testimonial statements that …

The Failure Of Mitigation?, Robert J. Smith

UC Law Journal

A vast literature details the crimes that condemned inmates commit, but very little is known about the social histories of these capital offenders. For example, how many offenders possessed mitigating characteristics that demonstrate intellectual or psychological deficits comparable to those shared by classes of offenders categorically excluded from capital punishment? Did these executed offenders suffer from intellectual disability, youthfulness, mental illness, or childhood trauma? The problem with this state of affairs is that the personal characteristics of the defendant can render the death penalty an excessive punishment regardless of the characteristics of the crime. This Article begins to fill the …

Neuro-Voir Dire And The Architecture Of Bias, Dov Fox

UC Law Journal

Courts and commentators routinely assume that “bias” on the jury encompasses any source of influence upon jurors that does not come directly from the evidence presented at trial. This sweeping conception of juror bias is flawed because it fails to distinguish the prejudices and affinities that infect jury decisionmaking from the experiences and perspectives that enrich it. This Article uses a thought experiment informed by the neuroscience of bias to illuminate the complexity of juror influences that go by the name of bias. I distinguish four distinct categories of juror influence: personal interests, community interests, case-specific beliefs, and case-general beliefs. …

Incompetent But Deportable: The Case For A Right To Mental Competence In Removal Proceedings, Fatma E. Marouf

UC Law Journal

Important strides are currently being made toward increasing procedural due process protections for noncitizens with serious mental disabilities in removal proceedings, such as providing them with competency hearings and appointed counsel. This Article goes even further, arguing that courts should recognize a substantive due process right to competence in removal proceedings, which would prevent those found mentally incompetent from being deported. Recognizing a right to competence in a quasi-criminal proceeding such as removal would not be unprecedented, as most states already recognize this right in juvenile adjudication proceedings. The Article demonstrates that the same reasons underlying the prohibition against trial …

Perspectives On Criminal Litigation Ethics: James Cole & Jeffrey Adachi, James Cole, Jeffrey Adachi

UC Law Journal

In August 2013, U.C. Hastings College of the Law was honored to host its first ever MCLE conference addressing “Criminal Litigation Ethics.” MCLE, of course, means “mandatory continuing legal education,” and I was pleased to organize a conference that addressed, in an academic setting, this vital topic of practical lawyering that appears in the headlines almost every day. Our unique objective was to provide two full days of hands-on training by nationally prominent criminal defense and prosecution lawyers, for litigating lawyers as well as law students, separated by setting and geography from the competition of daily practice. The conference was …

Note – Rape-Related Pregnancies: The Need To Create Stronger Protections For The Victim-Mother And Child, Margot E. H. Stevens

UC Law Journal

About one in six women in the United States will be a victim of rape. For many of these women, the rape does not end there—this crime against their body will result in an unplanned pregnancy. In recent years, rape awareness has increased both in the government and among the public: a new federal definition of rape encompasses a broader spectrum of victims and pregnancy resulting from rape was splashed across national headlines. But this is not enough. Most states lack sufficient legal protections for a pregnant rape victim: criminal prosecutions and convictions for rape are rare, and many states …

Language Disenfranchisement In Juries: A Call For Constitutional Remediation, Jasmine B. Gonzales Rose

UC Law Journal

Approximately thirteen million U.S. citizens, mostly Latinos and other people of color, are denied the right to serve on juries due to English language requirements and despite the possibility (and centuries-old tradition) of juror language accommodation. This exclusion results in the underrepresentation of racial minorities on juries and has a detrimental impact on criminal defendants, the perceived legitimacy of the justice system, and citizen participation in democracy. Yet, it has been virtually ignored. This Article examines the constitutionality of juror language requirements, focusing primarily on equal protection and the fair cross section requirement of the Sixth Amendment. Finding the existing …

The Implausibility Of Secrecy, Mark Fenster

UC Law Journal

Government secrecy frequently fails. Despite the executive branch’s obsessive hoarding of certain kinds of documents and its constitutional authority to do so, recent high-profile events—among them the WikiLeaks episode, the Obama administration’s infamous leak prosecutions, and the widespread disclosure by high-level officials of flattering confidential information to sympathetic reporters—undercut the image of a state that can classify and control its information. The effort to control government information requires human, bureaucratic, technological, and textual mechanisms that regularly founder or collapse in an administrative state, sometimes immediately and sometimes after an interval. Leaks, mistakes, and open sources all constitute paths out of …

Marijuana Legalization. Initiative Statute.

Initiatives

Legalizes under state law marijuana use, cultivation, possession, transportation, processing, distribution, and sale by persons 21 years and over. Erases prior convictions for certain marijuana-related offenses two years after conviction. Requires Department of Alcoholic Beverage Control to regulate and license commercial marijuana cultivation, transportation, sales, and testing. Imposes 6% tax on nonmedical marijuana sales at cultivation, wholesale, and retail stages. Permits local governments to impose additional 5% sales tax. Exempts personal gardens or up to three pounds of marijuana from regulation or taxation. Requires voter approval for local governments to enact certain marijuana zoning requirements. Summary of estimate by Legislative …

State Budget. Budget Stabilization Account.

Propositions

Requires annual transfer of state general fund revenues to budget stabilization account. Requires half the revenues be used to repay state debts. Limits use of remaining funds to emergencies or budget deficits. Fiscal Impact: Long-term state savings from faster payment of existing debts. Different levels of state budget reserves, depending on economy and decisions by elected officials. Smaller local reserves for some school districts. Note: On August 11, 2014, the State Legislature and Governor renumbered Proposition 44 to Proposition 2.

Criminal Sentences. Misdemeanor Penalties.

Propositions

Requires misdemeanor sentence instead of felony for certain drug and property offenses. Inapplicable to persons with prior conviction for serious or violent crime and registered sex offenders. Fiscal Impact: State and county criminal justice savings potentially in the high hundreds of millions of dollars annually. State savings spent on school truancy and dropout prevention, mental health and substance abuse treatment, and victim services.

Voter Information Guide For 2014, General Election

Propositions

General Election

What Can Medicine Teach The Social Sciences?, Lee Mcintyre

UC Law Science and Technology Journal

In a field as slow to change as the law, it is often helpful to inject fresh perspectives from other disciplines. As different as legal analysis might be from that found in the medical and social sciences, they are all ultimately concerned with the pursuit of objectivity. Furthermore, in each of these fields, the pursuit of academic and practical goals are permeated and influenced by the values of those that seek to achieve them. Indeed, both the law and the social sciences in particular are fundamentally concerned with finding ways of distilling logic and order from the complexities of human …

The Inmate Export Business And Other Financial Adventures: Correctional Policies For Times Of Austerity, Hadar Aviram

UC Law Journal of Race and Economic Justice

The fallout of the financial crisis continues to have major effects across the American correctional landscape. Federal and state budgetary limits have slowed and even reversed what were thought to be ever-rising incarceration rates. While this has successfully led to less punitive policies regarding the death penalty and the war on drugs, incarceration practices have affected punitivism in more complex ways. This article explores the correctional changes prompted by the financial crisis that are being made not at the ballot box, but behind closed doors. The outcomes of negotiations between prison administrators and private service providers, or amongst state governments, …

Trafficking In Information: Evaluating The Efficacy Of The California Transparency In Supply Chains Act Of 2010, Alexandra Prokopets

UC Law SF International Law Review

The California Transparency in Supply Chains Act of 2010 (CTSCA) took effect in January 2012. It was designed in an effort to eradicate forced labor and human trafficking in business supply chains, which the legislature recognized as violations of state, federal, and international law. The CTSCA does not forbid the sale of goods produced through trafficked labor. Instead, the CTSCA asks companies to disclose their labor practices to consumers in order to allow buyers to differentiate companies based on their efforts to supply products free from slavery and trafficking, which will in turn inform consumers' purchasing decisions and drive companies …

Military Sexual Trauma And Mental Health Diagnoses In Female Veterans Returning From Afghanistan And Iraq: Barriers And Facilitators To Veterans Affairs Care, Kelly H. Koo, Shira Maguen

UC Law SF Journal on Gender and Justice

As a result of the increasing number of women participating in the military, more women than ever before have been accessing VA care. For those female veterans who experienced military sexual trauma while on active duty, VA care has thus far proved deficient to address the physical and mental repercussions trauma. This Article stresses that understanding military sexual trauma as a unique stressor in female veterans is crucial to providing better care for them. Mss. Koo and Maguen define what exactly military sexual trauma is, provide estimates of its prevalence today, and describe barriers and facilitators to care. Most importantly, …

A Private Sector Solution To A Public Problem, Chris Molina

UC Law Constitutional Quarterly

Over two centuries after the Bill of Rights was enacted, the Supreme Court finally resolved the controversy surrounding the meaning of the Second Amendment in the landmark case, District of Columbia v. Heller. Specifically, the Court held that the Second Amendment protected an individual's right to possess a firearm for traditionally lawful purposes, such as self-defense within the home. In reaching this decision, the Court determined that the Amendment's prefatory clause, "A well regulated Militia, being necessary to the security of a free State," did not limit the scope of the right to bear arms for militia purposes. Although the …

In Re C.P.: The Ohio Supreme Court's Expansion Of Roper V. Simmons And Graham V. Florida To The Realm Of Juvenile Sex Offender Registration, Ben Blumenthal

UC Law Constitutional Quarterly

In the landmark 2012 Ohio Supreme Court case In re C.P., the court held the statute mandating a minor's automatic lifetime registration as a sex offender constituted cruel and unusual punishment in violation of the Eight Amendment and Ohio's own constitutional prohibition against cruel and unusual punishment. Additionally, the court found automatic registration ran afoul of the Fourteenth Amendment's Due Process Clause.

In re C.P. raises several critical questions. Chief amongst them is whether categorical principles enunciated in Roper v. Simmons and Graham v. Florida should even apply to juvenile sex-offender registration schemes. This question is highly relevant because an …

The U.S. Supreme Court's Failure To Fix Plea Bargaining: The Impact Of Lafler And Frye, Cynthia Alkon

UC Law Constitutional Quarterly

Virtually every criminal conviction in the United States is the result of a guilty plea, not a jury trial. Yet it was not until 2012, in the companion cases of Lafler v. Cooper and Missouri v. Frye, that the U.S. Supreme Court recognized a defendant's constitutional right to effective assistance of counsel during plea bargaining. Legal commentators suggested that these cases were "the single greatest revolution in the criminal justice process since Gideon v. Wainwright." But will things really improve for defendants in the wake of Lafler and Frye? The simple answer is: "No." Lafler and Frye will not bring …

The New Jim Crow - Recovering The Progressive Origins Of Mass Incarceration, Anders Walker

UC Law Constitutional Quarterly

This Article revisits the claim that mass incarceration constitutes a new form of racial segregation, or Jim Crow. Drawing from historical sources, it demonstrates that proponents of the analogy miss an important commonality between the "new" and "old" Jim Crows, namely the debt that each owe to progressive and/or liberal politics. In a manner that scholars like Michelle Alexander forget, both racial segregation and mass incarceration owe their existence in part to discourses of reform aimed at promoting black interests, albeit with perverse results. Recognizing the aspirational origins of such systems helps to better explain how they came into being, …