Digital Commons Network^™

S.B. 9: A Second Chance For Juveniles Serving Life Without Parole In California In Theory - And Why It Won't Make A Difference In Practice, Evan Reese

UC Law Constitutional Quarterly

Historically, juveniles have been treated differently than adults when convicted of a crime. They were seen as less culpable than adults and more capable of reform. In California and in many other states, however, some juveniles have been tried as adults in a variety of situations. Recent legislation in California has offered a glimmer of hope, and perhaps a second chance, for some juvenile offenders who have been sentenced as adults to life without parole. S.B. 9 allows such juveniles to petition the court for resentencing after serving the first fifteen years of their life sentence. In theory, if the …

Check, Pleas: Toward A Jurisprudence Of Defense Ethics In Plea Bargaining, Hadar Aviram, Deanna Dyer, S. C. Thomas

UC Law Constitutional Quarterly

After years of hesitation to acknowledge instances of ineffective assistance of counsel under the standard set in Strickland v. Washington (1984), the Supreme Court has addressed it head-on in the context of pleabargaining. In three recent cases-Padilla v. Kentucky (2010), Lafler v. Cooper (2012), and Missouri v. Frye (2012)-the Court attempted to define defense counsel professionalism and fashion remedies for lack thereof. But these cases are far from the first effort to regulate the quality of counsel in plea bargaining.

The Article starts by using insights from classic courtroom ethnography to explicate the main issues that influence defense practices in …

Sentenced To Die In Prison: Life Without Parole As An Eighth Amendment Violation For All Juveniles And Especially Those Who Have Not Killed, Morgan S. Mcginnis

UC Law Journal of Race and Economic Justice

Over the last decade, the Supreme Court of the United States has delivered a series of rulings establishing that juvenile offenders are to have their criminal sentences considered differently from that of adults. Over this span of time, the Court established that it is unconstitutional to sentence a juvenile to the death penalty in any scenario, as well as to life without parole for non-homicide crimes. In the 2012 case of Miller v. Alabama, the Court extended this line of reasoning by declaring that even for juveniles who commit homicides, life without parole may not be imposed as part of …

No To Bratton: A Rejection Of Stop And Frisk, And A Call For Progressive Reform In Oakland, Robert S. Greer Jr.

UC Law Journal of Race and Economic Justice

On January 23, 2012, the City of Oakland voted to retain the services of William Bratton, former police chief of both New York and Los Angeles, as a consultant to the Oakland Police Department. Oakland Community members reacted with concern and resistance to the City's decision, largely due to Bratton's promotion of aggressive stop and frisk search techniques. This note provides an analysis of Bratton's appointment in light of the Oakland Police Department's egregious history of constitutional violations and misconduct charges. Additionally, this note explores the empirical and theoretical flaws underpinning aggressive stop and frisk policies, and demonstrates why adopting …

Illegal Reentry And Denial Of Bail To Undocumented Defendants: Unjust Tools For Social Control Of Undocumented Latino Immigrants, Patrick Kirby Madden

UC Law Journal of Race and Economic Justice

Historical, structural, statistical, and constitutional context is elemental to a proper understanding of the true purpose and effect of a criminal statute and its execution. Illegal Reentry, 8 U.S.C. § 1326, may seem like a basic rule to deter potential criminals from entering the United States. A prosecutor's argument that a defendant must be detained prior to trial due to the possibility of Immigration and Customs Enforcement removing the defendant may seem like a logical argument. However, once these actions are viewed in the succession of events that constitutes the history of undocumented Latino immigrants in the United States, are …

How Mainstream Reformers Design Ambitious Reentry Programs Doomed To Fail And Destined To Reinforce Targeted Mass Incarceration And Social Control, Gerald P. Lopez

UC Law Journal of Race and Economic Justice

The most influential publication on how to design and implement comprehensive and effective reentry programs is the 2005 REPORT OF THE REENTRY POLICY COUNCIL, produced by the bipartisan Council of State Governments (CSG). Triggered by the disturbingly high price of the reigning criminal justice system, and aiming to reduce costs and enhance safety, the REPORT manages both to champion an ambitious approach and to doom its chances of success. Perhaps this effect can be described as predictable and even intentional, especially given the overlapping interests of the elected and appointed officials (and the staffers and collaborators) who comprise CSG. But …

Citizen Participation In Criminal Trials In Japan: The Saiban-In System And Victim Participation In Japan In International Perspectives, Setsuo Miyazawa

Faculty Scholarship

No abstract provided.

Patent Demands & Startup Companies The View From The Venture Capital Community, Robin Feldman

Faculty Scholarship

No abstract provided.

Law And Neuroscience Recommendations Submitted To The President's Bioethics Commission, David L. Faigman, Jones D. Owen, Richard J. Bonnie, B.J. Casey

Faculty Scholarship

No abstract provided.

Perspectives On Criminal Litigation Ethics James Cole & Jeffrey Adachi, Rory K. Little, James Cole, Jeffrey Adachi

Faculty Scholarship

No abstract provided.

The Plea Bargain Machine, George Bisharat

Faculty Scholarship

No abstract provided.

Enforcement Discretion And Executive Duty, Zachary S. Price

Faculty Scholarship

No abstract provided.

Criminal Sentences. Misdemeanor Penalties. Initiative Statute.

Initiatives

Requires misdemeanor sentence instead of felony for petty theft, receiving stolen property, and forging/writing bad checks when value or amount involved is $950 or less. Requires misdemeanor sentence instead of felony for certain drug possession offenses. Allows felony sentence for these offenses if person has previous conviction for crimes such as rape, murder or child molestation or is a registered sex offender. Requires resentencing for persons serving felony sentences for these offenses unless court finds unreasonable public safety risk. Applies savings to mental health and drug treatment programs, K-12 schools, and crime victims. Summary of estimate by Legislative Analyst and …

Criminal Sentences. Misdemeanor Penalties. Initiative Statute.

Initiatives

Requires misdemeanor sentence instead of felony for petty theft, receiving stolen property, and forging/writing bad checks when value or amount involved is $950 or less. Requires misdemeanor sentence instead of felony for certain drug possession offenses. Allows felony sentence for these offenses if person has previous conviction for crimes such as rape, murder or child molestation or is a registered sex offender. Requires resentencing for persons serving felony sentences for these offenses unless court finds unreasonable public safety risk. Applies savings to mental health and drug treatment programs, K-12 schools, and crime victims. Summary of estimate by Legislative Analyst and …

Marijuana Legalization. Initiative Statute.

Initiatives

Legalizes limited amounts of marijuana, including concentrated cannabis, under state law for personal use, cultivation, possession, transportation, purchase, donation, or consumption by persons 21 years and over. Requires Department of Alcoholic Beverage Control to regulate and license commercial marijuana cultivation, transportation, sales, and testing. Imposes 25% tax on nonmedical marijuana retail sales. Allocates revenues to repayment of general fund start-up loan to Department, research, afterschool programs, drug treatment and prevention, local law enforcement/fire, and environmental cleanup. Exempts medical marijuana collectives from licensing and regulatory requirements. Allows local governments to ban/limit number of marijuana businesses. Summary of estimate by Legislative Analyst …

Marijuana Legalization. Initiative Statute.

Initiatives

Legalizes limited amounts of marijuana, including concentrated cannabis, under state law for personal use, cultivation, possession, transportation, purchase, donation, or consumption by persons 21 years and over. Requires Department of Alcoholic Beverage Control to regulate and license commercial marijuana cultivation, transportation, sales, and testing. Imposes 25% tax on nonmedical marijuana retail sales. Allocates revenues to repayment of general fund start-up loan to Department, research, afterschool programs, drug treatment and prevention, local law enforcement/fire, and environmental cleanup. Exempts medical marijuana collectives from licensing and regulatory requirements. Allows local governments to ban/limit number of marijuana businesses. Summary of estimate by Legislative Analyst …

Juvenile Pariahs, Amy E. Halbrook

UC Law Journal

Under federal and some state laws, juveniles who have been adjudicated delinquent for sex offenses can be required to register on sex offender registries for extended periods or life. In some jurisdictions, lifetime sex offender registration, community notification, and other sex offender restrictions are mandatory.This Article explores whether mandatory lifetime sex offender registration, community notification and other sex offender restrictions violate the Eighth Amendment’s guarantee against cruel and unusual punishment as applied to juveniles. Citing Roper v. Simmons and Graham v. Florida, the United States Supreme Court recently held in Miller v. Alabama that assigning mandatory life-without-parole prison sentences to …

Note – The True Man & The Battered Woman: Prospects For Gender Neutral Narratives In Self-Defense Doctrines, Katelyn E. Keegan

UC Law Journal

The recent rise of controversial Stand Your Ground laws has sparked discussions on self-defense law. Comparing the new Stand Your Ground laws with another self- defense doctrine—Battered Women’s Syndrome—it becomes apparent that the law solidifies gender stereotypes by assessing when an individual is justified in using deadly force against an aggressor. “True men” are empowered to use deadly force in public without a duty to retreat, while a battered woman often must provide expert testimony on her psychological condition to prove the reasonableness of her use of deadly force in light of her severe helplessness. At their extremes, both of …

Captive Markets, Leah A. Plunkett

UC Law Journal

Modern county jails have increasingly adopted policies to bill their inmates for some or all of the costs of their room and board. Statutes authorizing counties to implement these “pay-to-stay” programs are on the books in roughly seventy percent of states, yet the financial mechanism on which these programs typically rely is not well understood. Although the pay-to-stay obligation bears some resemblance to familiar citizen-state financial transactions—such as fines and penalties, restitution, taxes, and fees—it usually belongs to a distinct model that this Article calls the “government-imposed loan.” This Article provides an overview of the landscape of pay-to-stay programs and …

Symposium – What Real-World Criminal Cases Tell Us About Genetics Evidence, Deborah W. Denno

UC Law Journal

Rapid advances in genetic and neuroscience research over the past few decades have fueled a focus on how such information is viewed and used by the criminal justice system. Researchers at the University of Utah recently conducted an unprecedented experimental study indicating that psychopathic criminal offenders are more likely to receive lighter sentences if a judge was aware of genetic and neurobiological explanations for the offender’s psychopathy. This Article contends that the study’s conclusions derive from substantial flaws in the study’s design and methodology. The hypothetical case upon which the study is based captures just one narrow and unrepresentative component …

Note – Toward Effective Access To Justice In Haiti: Eliminating The Medical Certificate Requirement In Rape Prosecution, Shannon D. Lankenau

UC Law Journal

In Haiti, the overwhelming majority of rapes go unpunished. To date, the Haitian government has failed to promulgate a working legal framework in which it can effectively prosecute crimes of sexual violence. Women, in particular, are disproportionately burdened by these inadequacies. This Note explores one of the most problematic aspects of the current legal system: the de facto requirement that a woman obtain a medical certificate to corroborate her claim of rape. Although not mandated by Haitian law, medical certificates are regarded as the foundation of any prosecution because deficient investigations often fail to produce any additional evidence for use …

Communique (Summer 2013), Uc Hastings Center For Negotiation And Dispute Resolution

Center for Negotiation and Dispute Resolution

No abstract provided.

The Evolution Of A National Response To Violence Against Women, Robin R. Runge

UC Law SF Journal on Gender and Justice

The Violence Against Women Act has a long and important history. VAWA has had a profound impact on the way the legal system defines,identifies, and responds to violence against women. In these remarks, based on Ms. Runge's extensive professional history working on VAWA and related legal issues, she examines the remaining shortcomings of VAWA and praises the progress achieved since the first VAWA was passed in 1994 to the most recent reauthorization in 2013.

The Ongoing Correctional Chaos In Criminalizing Mental Illness: The Realignment's Effects On California Jails, Anastasia Cooper

UC Law SF Journal on Gender and Justice

This note explores the increasing presence of the mentally ill in California county jails, specifically in the Los Angeles County Jail. particularly in the context of California's Realignment legislation. The case igniting this reform in California, Brown v. Plata alleged Eighth Amendment violations in California's prison system based on shortcomings in mental health care and medical care. The Supreme Court attributed the violations and deficiencies in care to overcrowding in the prison population. California legislators responded to the Supreme Court's prison-population reduction mandate with Assembly Bill 109 which redirects inmates to county jail. The mentally ill were largely and ironically …

Amicus Curiea Brief: Stormans, Inc. V. Selecky, Sarah L. Ainsworth

UC Law SF Journal on Gender and Justice

Preventing pregnancy after sexual assault and violence is critical to a woman's psychological recovery and physical health. Emergency contraception works effectively to prevent pregnancy, and is the medical standard of care for treating women and girls of reproductive age after a sexual assault. While pregnancies pose health risks for every woman, rape-related pregnancies hold profound consequences including compounded trauma and an increased vulnerability to violence. In this brief, amici urge the Ninth Circuit to recognize the importance of access to emergency contraception for all women, and its critical nature for rape and domestic violence survivors.

Strengthening The Effectiveness Of California's Hiv Transmisision Statute, Erin Mccormick

UC Law SF Journal on Gender and Justice

The current California HIV transmission statute is ineffective because the intentional exposure mens rea requirement drastically limits prosecutors' ability to show culpability for those who expose others to HIV through sexual activity. This note proposes an amended statue, which allow for prosecuting those who knowingly expose others to HIV without disclosing to them their HIV -positive status.

Torture At Home: Borrowing From The Torture Convention To Define Domestic Violence, Claire Wright

UC Law SF Journal on Gender and Justice

The great majority of U.S. states do not include mental abuse in their definitions of domestic violence, even though mental abuse the most dangerous and pervasive form of domestic violence. Based on a comprehensive review of the psychological theory of domestic violence and numerous laws outlawing bullying, hazing, and torture, this article proposes a new, psychologically sound definition of domestic violence which encompasses mental abuse and at the same time provides protections against infringements of individuals' privacy, free speech, and parental rights. This article concludes that the states' failure to treat mental abuse as domestic violence is greatly facilitating the …

Condemnation Without Basis: An Expressive Failure Of Corporate Prosecutions, Gregory M. Gilchrist

UC Law Journal

This is the second of two Articles on the expressive aspects of corporate criminal liability. The first Article argued that to justify imposing criminal liability on corporations we must refer to the expressive function of criminal liability. This Article considers the expressive function of actual corporate prosecutions and identifies aspects of corporate prosecutions that generate expressive costs rather than benefits. These are the expressive failures of corporate prosecutions. This Article identifies a number of these failures and introduces a model of perceived legitimacy and the expressive function of punishment that explains how expressive failures harm the legal system. Mere respondeat …

Note – Sustainable Capitalism Through The Benefit Corporation: Enforcing The Procedural Duty Of Consideration To Protect Non-Shareholder Interests, Ian Kanig

UC Law Journal

Corporations are beholden to a deeply flawed system of corporate governance known as shareholder wealth maximization. This norm dictates that corporations optimize profits at all costs to compensate equity investors for their continued exposure to risk. Other stakeholders in the corporate enterprise, like employees and consumers, are owed nothing outside of the contractual relationships they might possess, while the public at large is owed nothing at all. Because courts continue to vigorously enforce this norm, corporations are largely excluded from providing public goods and services, while simultaneously incentivized to push harmful production costs onto communities and the environment. To cope …

Redemption Deferred: Military Commissions In The War On Terror And The Charge Of Providing Material Support For Terrorism, Dana M. Hollywood

UC Law SF International Law Review

On June 24, 2011, the Court of Military Commission Review (CMCR) released its decision in the case of U.S. v. Hamdan, holding that material support for terrorism (MST) constitutes a law of war violation. The Court of Appeals for the D.C. Circuit granted certiorari and heard oral arguments in the case on May 3, 2012. The court released its decision on October 16, 2012, as this article was going to the publisher. This article argues that the charge of MST is not a violation of the law of war, and that is the conclusion ultimately reached by the D.C. Circuit. …