Digital Commons Network^™

Supermajoritarianism And The American Criminal Jury, Ethan J. Leib

UC Law Constitutional Quarterly

In Apodaca v. Oregon and Johnson v. Louisiana, the Supreme Court allowed the relaxation of the decision rule most commonly associated with criminal jury felony verdicts and held that unanimity in state criminal cases is not constitutionally required. The Court announced that states were allowed to use 10-2 and 9-3 verdicts in non-capital state cases in contravention of the traditional rule requiring unanimity. The Court argued that the essential function of the jury is to place between the accused and the state a commonsense group of laymen representing a cross-section of the community-and that relaxation of the unanimity requirement would …

Getting Away With Murder: Guatemala's Failure To Protect Women And Rodi Alvarado's Quest For Saftey, Angelica Chazaro, Jennifer Casey

UC Law SF Journal on Gender and Justice

A decade after the 1996 Peace Accords that marked the end of the 36-year internal armed conflict, Guatemala fails to provide basic protection of women's human rights. The plight of asylumseeker Rodi Alvarado and the spiked increase in the murders of Guatemalan women ("femicides") highlight the scope of Guatemala's lack of protection for women. After suffering ten years of brutal domestic violence, with the authorities ignoring her pleas for protection, Rodi fled Guatemala, seeking asylum in the United States. She is not alone in her suffering. Since 2001, over 1,500 women have been murdered in Guatemala, with the perpetrators enjoying …

Immigration Panel, Richard Boswell, Catherine Tactaquin, Mark Silverman, Joren Lyons

UC Law Journal of Race and Economic Justice

No abstract provided.

Race And The Jury: Racial Influences On Jury Decision-Making In Death Penalty Cases, Mustafa El-Farra

UC Law Journal of Race and Economic Justice

This note identifies the overwhelming influence of how the race of the victim and the defendant affects prosecutors and juries in capital punishment cases. The author focuses on the legislative and judicial shortcomings that have lead to a failure in proscribing and combating the issue of purposeful discrimination against minority defendants. The author proffers different remedies to address this problem, citing ideas mentioned in several state court cases as well as various federal legislative attempts to protect against racial discrimination in the application of capital punishment.

Aba Files Amicus Brief In Actual Innocence Case, Rory K. Little

Faculty Scholarship

No abstract provided.

Immigration Panel, Richard A. Boswell, Catherine Tactaquin, Mark Silverman, Joren Lyons, Bill Ong Hing

Faculty Scholarship

No abstract provided.

Electronic Research In State Prisons, Camilla Tubbs

Faculty Scholarship

No abstract provided.

The Justice Of Recovery: How The State Can Heal The Violence Of Crime, Linda G. Mills

UC Law Journal

A longstanding assumption of the criminal justice system is that victims benefit in some way from the prosecution and punishment of the person who caused them harm. This Article, however, argues that victim healing involves more than punishing the offender, and that by rethinking the roles victims perform in the criminal justice system, we may provide them with a more comprehensive menu of options to facilitate their recovery from crime. The societal goals of punishment and accountability and the individual desire for healing are not mutually exclusive. Incorporating recovery approaches from both the science of victimology and theories of restoration …

Mitigation And The Capital Defendant Who Wants To Die: A Study In The Rhetoric Of Autonomy And The Hidden Discourse Of Collective Responsibility, Daniel R. Williams

UC Law Journal

Two powerful adjudicatory ideals-preserving individual autonomy and promoting systemic reliability-collide most dramatically in cases where capital defendants join the prosecution in seeking a death verdict. Capital defendants do this by "waiving" the presentation of all mitigation evidence and affirmatively urging the jury to sentence them to death. This supposed expression of autonomy (presumably not unlike other constitutional waivers) impedes the sovereign's constitutional mandate to pursue reliable capital sentencing. Does autonomy trump reliability? This Article examines the mitigation-waiver conundrum in a way never done before, and by doing so, aspires to illuminate how the rhetoric of autonomy suppresses destabilizing notions such …

Delinquent Or Disabled? Harmonizing The Idea Definition Of "Emotional Disturbance" With The Educational Needs Of Incarcerated Youth, Moira O'Neill

UC Law Journal

Congress enacted the Individuals with Disabilities Education Act (IDEA) to meet the special education needs of disabled youth. Yet the Department of Education regulations defining "emotional disturbance," one of the qualifying disabilities under the IDEA, have consistently defined the term to exclude youth diagnosed as "socially maladjusted." Special education scholars and professionals have long criticized this definition of emotional disturbance as imprecise and inconsistent with mental health constructs of emotional and behavioral disorders. Incarcerated youth are particularly affected by this definition of "emotional disturbance," as they demonstrate a higher prevalence of special educational needs than does the public school population. …

Ignoring The Supreme Court: State V. White, The Civil Commitment Of Sexually Violent Predators, And Majoritarian Judicial Pressures, Eric W. Buetzow

UC Law Journal

In Kansas v. Hendricks, the Supreme Court upheld the constitutionality of state statutes that allow for the civil commitment of "sexually violent predators" after completion of their criminal sentences. But the Court in Hendricks left uncertain the precise requirements demanded by substantive due process in this context. Specifically, questions remained regarding whether, and to what degree, a defendant must suffer from volitional inability for the commitment to pass constitutional muster. The Supreme Court responded five years later in Kansas v. Crane, where it held that "there must be proof of serious difficulty in controlling behavior." This could have been considered …

Hastings Community (Winter 2005), Hastings College Of The Law Alumni Association

Hastings Alumni Publications

No abstract provided.

Identity Theft. Criminal Gang Activity. Forensic Computer Analysis Fund. Initiative Statute.

Initiatives

Increases criminal penalties for persons convicted of specified identity theft crimes. Adds identity theft and crimes involving personal identification cards to enumerated list of criminal gang activities. Expands definition of personal identifying information and requires prison terms and increased fines for acquisition of such information with intent to defraud. Expands venue in identity theft prosecutions to include county where victim resided at time of offense, and limits availability of probation. Creates forensic computer analysis fund to pay for analysis of electronic evidence in criminal investigations, financed through criminal fines. Summary of estimate by Legislative Analyst and Director of Finance of …

Hastings Community (Autumn 2005), Hastings College Of The Law Alumni Association

Hastings Alumni Publications

No abstract provided.

Hastings Community (Summer 2005), Hastings College Of The Law Alumni Association

Hastings Alumni Publications

No abstract provided.

Juvenile Courts. Child's Mental Health Treatment. Parental Consent. Initiative Statute.

Initiatives

Provides that no child shall be subjected to juvenile court jurisdiction, or be declared a ward of the court, because the child's parent/guardian refused to administer psychiatric medication or permit mental health evaluation or treatment. Prohibits public schools from requiring child to receive mental health evaluation or treatment absent informed written consent, as defined, from both parents or guardians. Imposes misdemeanor criminal penalties on child welfare service employees and public education employees who violate the measure. Applies to pending proceedings; criminal penalties apply prospectively. Summary of estimate by Legislative Analyst and Director of Finance of fiscal impact on state and …

The War Against The Illegal Antiquities Trade: Rules Of Engagement For Source Nations, Jason Mcelroy

UC Law SF Communications and Entertainment Journal

This article addresses the problems of retrieving stolen cultural property in a practical manner. Instead of proposing new legislation or changes in the current cultural property regime, this article argues that countries that are source nations for the growing illegal trade in antiquities should better prepare themselves for their retrieval attempts, which in turn gives them a better chance at retrieving them through civil cases. By focusing on settlements and cases won in the United States, the paper submits guidelines by which source nations can be best equipped to prevail in a United States civil suit of replevin.

State Spending And School Funding Limits.

Propositions

STATE SPENDING AND SCHOOL FUNDING LIMITS. INITIATIVE CONSTITUTIONAL AMENDMENT. Limits state spending to prior year’s level plus three previous years’ average revenue growth. Changes state minimum school funding requirements (Proposition 98); eliminates repayment requirement when minimum funding suspended. Excludes appropriations above the minimum from schools’ funding base. Directs excess General Fund revenues, currently directed to schools/tax relief, to budget reserve, specified construction, debt repayment. Permits Governor, under specified circumstances, to reduce appropriations of Governor’s choosing, including employee compensation/state contracts. Continues prior year appropriations if state budget delayed. Prohibits state special funds borrowing. Requires payment of local government mandates. SUMMARY OF …

Judicial Reform In Afghanistan: A Case Study In The New Criminal Procedure Code, Faiz Ahmed

UC Law SF International Law Review

On January 4, 2004, the Islamic Transitional State of Afghanistan ratified a constitution. While lauded by many, a number of its articles have stirred debate within Afghanistan. Using the country's new criminal procedure code as a case study, the author addresses key questions pertaining to legal reform and development movements, including the foreign imposition of law, a lack of local participation in legal reform processes, and a blindness to the multiple layers of indigenous law practiced on the ground. The author concludes that these are all weaknesses that will fundamentally hamper the rebuilding of stable legal institutions in Afghanistan in …

The History Of Wrongful Execution, Bruce P. Smith

UC Law Journal

Since the refinement of forensic DNA analysis in the early 199os, the problem of "wrongful execution" -the execution of persons who are actually innocent or the risk that such persons might be executed-has received considerable attention from scholars, legal practitioners, politicians, jurists, and social activists. The history of wrongful execution, however, remains unwritten.

This Article demonstrates that the problem of wrongful execution, although often considered to be a modern-day concern, preoccupied leading Anglo-American legal commentators in the seventeenth and eighteenth centuries. Troubled by several notorious instances of wrongful execution, prominent writers such as Matthew Hale and William Blackstone urged courts …

Going Toe To Toe: President Barak's And Chief Justice Rehnquist's Theories Of Judicial Activism, Amos N. Guiora, Erin M. Page

UC Law SF International Law Review

A critical component of a liberal democracy's counterterrorism efforts is the role of that nation's judiciary. The concept of an unfettered executive, unrestrained by courts and legislatures alike, is detrimental to a nation attempting to balance national security and individual rights. The authors analyze whether, and how, the courts in the United States and Israel truly review executive decisions regarding armed conflict by analyzing decisions of the two Supreme Courts and the late Chief Justice William Rehnquist's and President Barak's writings.

Reconciling Morality And Moral Responsibility In The Law: A Due Process Challenge To The Inconsistent Mental Responsibility Standards At Play In Criminal Insanity Defenses And Sexually Violent Predator Civil Commitment Hearings, Jeremy T. Price

UC Law Constitutional Quarterly

When seeking to civilly commit an inmate nearing release from prison, states often adopt a formulation of mental responsibility for criminal behavior that is inconsistent with the standard on which they rely when rebutting a criminal insanity defense. Defendants are permitted to raise certain incapacity defenses in one context, and yet they are prohibited from advancing those same defenses in another. As a result, many states may seek criminal punishment on the theory that a defendant is legally sane and then later argue that the same person has a serious mental abnormality characterized by a propensity to engage in criminal …

Evidence And Confrontation In The President's Military Commissions, Nicholas W. Smith

UC Law Constitutional Quarterly

In the wake of the terrorist attacks on the World Trade Center and the Pentagon on September 11, 2001, President George W. Bush and his administration began a vigorous offensive against America's perceived enemies. President Bush issued a Military Order to capture and take into custody anyone the President perceived to be a member of the al Qaida terror network, any suspect of terrorism, and anyone who aids the efforts of terrorists. The President holds limitless discretion over who falls under the jurisdiction of his order, and those captured are subject to trial of military commission. Five hundred prisoners are …

Inadequate And Inappropriate Mental Health Treatment And Minority Overrepresentation In The Juvenile Justice System, Kasey Corbit

UC Law Journal of Race and Economic Justice

Not only are minority youth at greater risk for mental illness, they are more likely to be funneled into the juvenile justice system because of untreated symptoms of mental illness. This is because minority youth are less likely to be insured at the same rates as their white peers and more likely to be perceived as aggressive or dangerous when exhibiting symptoms of a mental health problem. California voters may have created a possible solution to this situation by approving Proposition 63, now known as the "Mental Health Services Act," which requires California counties to create innovative solutions to addressing …

Envisioning Second-Order Change In America's Responses To Troubled And Troublesome Youth, Lois A. Weithorn

Faculty Scholarship

No abstract provided.

The Accelerating Degradation Of American Criminal Codes, Paul H. Robinson, Michael T. Cahill

UC Law Journal

This Article addresses the ongoing-and, indeed, accelerating process of sporadic, piecemeal, and unnecessary legislation leading to increasing inconsistencies and irrationalities in American criminal law. After a wave of modernization in the I960s and 1970s, the past generation has not witnessed further advances, but rather a serious and growing degradation of most criminal codes.

This Article offers several insights regarding criminal code degradation. First, it provides specific and concrete examples of degradation and its harmful effects. Second, drawing on their experiences as participants in the recent reform efforts of Illinois and Kentucky, the authors offer an insider's view of how the …

Implementing Atkins: The Strengths & Weaknesses Of In Re Hawthorne, Christopher Scott Tarbell

UC Law Journal

In 2002, the United States Supreme Court decided the case of Atkins v. Virginia. In Atkins, the Court created a categorical exemption from the death penalty for the mentally retarded, holding that the execution of such individuals violates the Constitution's ban on cruel and unusual punishments. However, the Court left to the states the difficult task of implementing the newly announced exemption.

The California Supreme Court confronted this challenge in the case of In re Hawthorne. In Hawthorne, the court was forced to decide what standards and procedures a court should use in assessing claims for Atkins relief raised by …

The Next Step In Dna Databank Expansion? The Constitutionality Of Dna Sampling Of Former Arrestees, Jacqueline K. S. Lew

UC Law Journal

This Note examines current developments in state DNA databank laws and the controversy surrounding the passage of California's latest DNA databank statute to predict that the next step in DNA databank expansion has arrived-namely, the collection of DNA from former arrestees, who neither have been convicted of a felony nor remain in government custody. Ultimately, the Note suggests that despite the recent trend towards expanding DNA databases around the country, the DNA sampling of former arrestees crosses a bright line that represents the constitutional end of such expansion.

In pointing out that courts have often relied on a plaintiff's status …

Local Government Funds And Revenues. State Mandates. Initiative Constitutional Amendment.

Initiatives

LOCAL GOVERNMENT FUNDS AND REVENUES. STATE MANDATES. INITIATIVE CONSTITUTIONAL AMENDMENT. Requires voter approval for any legislation that provides for any reduction, based on January 1,2003 levels, of local governments' vehicle license fee revenues, sales tax powers and revenues, and proportionate share of local property tax revenues. Permits local government to suspend performance of state mandate if State fails to reimburse local government within 180 days of final determination of state-mandated obligation; except mandates requiring local government to provide/modify: any protection, benefit or employment status to employee/retiree, or any procedural/substantive employment right for employee or employee organization. Summary of estimate by …

Dna Samples. Collection. Database. Funding. Initiative Statute.

Initiatives

DNA SAMPLES. COLLECTION. DATABASE. FUNDING. INITIATIVE STATUTE. Requires collection of DNA samples from all felons, and from adults and juveniles arrested for or charged with specified crimes, and submission to state DNA database; and, in five years, from adults arrested for or charged with any felony. Authorizes local law enforcement laboratories to perform analyses for state database and maintain local database. Specifies procedures for confidentiality and removing samples from databases. Imposes additional monetary penalty upon certain fines/forfeitures to fund program. Designates California Department of Justice to implement program, subject to available moneys: Authorizes $7,000,000 loan from Legislature for implementation. Summary …