Digital Commons Network^™

Initiating A New Constitutional Dialogue: The Increased Importance Under Aedpa Of Seeking Certiorari From Judgments Of State Courts, Giovanna Shay, Christopher Lasch

William & Mary Law Review

The Antiterrorism and Effective Death Penalty Act (AEDPA) contains a provision restricting federal courts from considering any authority other than holdings of the Supreme Court in determining whether to grant a state prisoner's petition for habeas corpus. Through an empirical study of cert filings and cases decided by the Supreme Court, we assess this provision's impact on the development of federal constitutional criminal doctrine. Before AEDPA and other restrictions on federal habeas corpus, lower federal courts and state courts contributed to doctrinal development by engaging in a "dialogue" (as described by Robert M. Cover and T. Alexander Aleinikoff in a …

Spare The Rod, Save The Child: Reviewing Corporal Punishment Through The Lens Of Domestic Violence, Sarah Brady Brundage

W&M Law Student Publications

No abstract provided.

2008-2009 Supreme Court Preview: Schedule, Institute Of Bill Of Rights Law, William & Mary Law School

Supreme Court Preview

No abstract provided.

The Significance (If Any) For The Federal Criminal Justice System Of Advances In Lie Detector Technology, Jeffrey Bellin

Faculty Publications

Against a backdrop of accelerating developments in the science of lie detection certain to reopen the debate on the reliability and therefore admissibility of lie detector evidence in the federal courts, this Article examines whether the prohibition on hearsay evidence (or other evidentiary objections) will preclude admissibility of even scientifically reliable lie detector evidence. The Article concludes that the hearsay prohibition, which has been largely ignored by courts and commentators, is the primary obstacle to the future admission of scientifically valid lie detector evidence. The Article also suggests a potential solution to the hearsay problem that may allow admission of …

The Unrecognized Right Of Criminal Defendants To Admit Their Own Pretrial Statements, Stephen A. Saltzburg, Daniel J. Capra

William & Mary Law Review

In Agard v. Portuondo, the United States Supreme Court held that a prosecutor did not violate a testifying defendant's constitutional rights by inviting the jury to infer from the defendant's presence at trial that the defendant altered his own version of events to accord with other witnesses' testimony. Justice Scalia's opinion for the Court emphasized that jurors might well draw the inference even without a prosecutor asking them to do so. Although Agard is viewed as giving an advantage in a criminal trial to the government, this Article considers how Agard might be used to allow defense counsel to introduce …

The Advocate (Vol. 5, Issue 12)

Student Newspaper (Amicus, Advocate...)

No abstract provided.

Improving The Reliability Of Criminal Trials Through Legal Rules That Encourage Defendants To Testify, Jeffrey Bellin

Faculty Publications

Reflecting a traditional bias against defendants' trial testimony, the modern American criminal justice system, which now recognizes a constitutional right to testify at trial, unabashedly encourages defendants to waive that right and remain silent. As a result, a large percentage of criminal defendants decline to testify, forcing juries to decide the question of the defendant's guilt without ever hearing from the person most knowledgeable on the subject.

This Article contends that the inflated percentage of silent defendants in the American criminal trial system is a needless, self-inflected wound, neither required by the Constitution nor beneficial to the search for truth. …

Misdemeanants, Firearms, And Discretion: The Practical Impact Of The Debate Over "Physical Force" And 18 U.S.C. § 922(G)(9), Adam W. Kersey

William & Mary Law Review

No abstract provided.

Political Judges And Popular Justice: A Conservative Victory Or A Conservative Dilemma?, George D. Brown

William & Mary Law Review

Most of the judges in America are elected. Yet the institution of the elected judiciary is in trouble, perhaps in crisis. The pressures of campaigning, particularly raising money, have produced an intensity of electioneering that many observers see as damaging to the institution itself. In an extraordinary development, four justices of the Supreme Court recently expressed concern over possible loss of trust in state judicial systems. Yet mechanisms that states have put in place to strike a balance between the accountability values of an elected judiciary and rule of law values of unbiased adjudication are increasingly invalidated by the federal …

An Informational Approach To The Mass Imprisonment Problem, Adam M. Gershowitz

Faculty Publications

The United States is plagued by the problem of mass imprisonment, with its prison population having risen by 500% in the last three decades. Because the overwhelming majority of criminal cases are resolved through plea bargaining, there is room for prosecutors to reduce mass imprisonment by exercising their wide discretion. At present, prosecutors likely do not give much consideration to the overcrowding of America 's jails and prisons when making their plea bargain offers. However, if prosecutors were regularly advised of such overcrowding they might offer marginally lower sentences across the board. For instance, a prosecutor who typically offers a …

A Welfare State Of Civil Rights: The Triumph Of The Therapeutic In American Constitutional Law, Daniel F. Piar

William & Mary Bill of Rights Journal

This Article examines the influence of the therapeutic culture on the modem constitutional law of civil rights. The therapeutic culture is defined as one in which the central moral question is individual fulfillment. That culture has sprung up to replace older cultures such as Protestantism and classical republicanism, which are no longer capable of appealing to a nation as diverse as the United States. Instead of asking whether individuals or the nation conform to some external moral system, the therapeutic culture asks whether individuals are happy or fulfilled. This Article demonstrates that the therapeutic culture has had a significant effect …

The Advocate (Vol. 5, Issue 9)

Student Newspaper (Amicus, Advocate...)

No abstract provided.

Speech: Latinas And Their Families In Detention: The Growing Intersection Of Immigration Law And Criminal Law, Sandra Guerra Thompson

William & Mary Journal of Race, Gender, and Social Justice

In this article, Professor Sandra Guerra Thompson explores the growing enforcement of immigration law within the interior of the United States and the growing intersection of the criminal justice system and immigration law. Through the use of worksite enforcement sweeps and immigration screening by state and local law enforcement, growing numbers of undocumented persons are being taken into custody by federal immigration officials. She examines the plight of women and families held in detention centers under what are often deplorable conditions. Ironically, immigration detention centers offer fewer resources than those available in most state prisons. The immigration law judicial system …

Expanding The Arsenal For Sentencing Environmental Crimes: Would Therapeutic Jurisprudence And Restorative Justice Work?, Carrie C. Boyd

William & Mary Environmental Law and Policy Review

No abstract provided.

Public Policy, Women, And Confinement: A Plea For Reasonableness, Peter M. Carlson

William & Mary Journal of Race, Gender, and Social Justice

This veteran correctional administrator reviews the explosion of numbers of female offenders confined in the United States today. The article explores the myriad causes and effects of this shift in public policy and notes the negative impact of today's policy outcomes on individual offenders, correctional systems, and our society. The author argues for a modification of policy to a more rational approach to judicial sentencing.

The Caged Canary, Elizabeth Alexander

William & Mary Journal of Race, Gender, and Social Justice

The United States has experienced an explosion in the number of people in prison, an explosion that cannot be attributed to changes in the crime rate, but rather reflects changes in public policy, particularly sentencing policy regarding drug crimes. These changes have had a devastating impact on African-American communities. The changes have also adversely affected the social, economic, and political culture of the nation as a whole. The rate of increase in incarceration for women prisoners has been disproportionately high, although women are generally imprisoned for non-violent crimes and have lower recidivism rates than men. Once in prison, women are …

Women In Federal Prison: Pathways In, Programs Out, Kim White

William & Mary Journal of Race, Gender, and Social Justice

One of the fastest growing populations in most correctional systems is female offenders and the impact of these rising numbers is significant. The author speaks to the rising female population numbers, the types of crimes and behaviors that lead to their incarceration, the characteristics of female offenders, the impact their incarceration has on their families and children, and how gender responsive programming is pivotal to their effective and successful reentry into society.

Women In Prison: International Problems And Human Rights Based Approaches To Reform, Jenni Gainsborough

William & Mary Journal of Race, Gender, and Social Justice

The growth in prison populations is a world-wide phenomenon, and within the overall growth rate, many countries are seeing a disproportionate rate of increase among women. Despite differences in culture and resources, women everywhere face similar problems in prison systems, which have been designed primarily by and for men. These include sexual abuse, lack of appropriate medical care, loss of children and breakdown of families. The United States leads the world in both the overall size of its prison population and its rate of incarceration. Advocates for reform are increasingly turning to international human rights laws, standards and norms to …

Women And The Death Penalty: Racial Disparities And Differences, Harry Greenlee, Shelia P. Greenlee

William & Mary Journal of Race, Gender, and Social Justice

The death penalty in America has been studied, discussed, and written about extensively. The vast majority of researchers, however, have focused their study of the death penalty, or capital punishment, on male prisoners. This article examines the data related to women on death row since 1973, with particular attention to similar problems that have been documented for men, while highlighting racial differences and/or racial disparities where found. The subjects were 157 women who received death row sentences, forty-nine women currently on death row, and the eleven women executed since 1973. The data demonstrated that some racial disparities do exist with …

Hard Labor: The Legal Implications Of Shackling Female Inmates During Pregnancy And Childbirth, Geraldine Doetzer

William & Mary Journal of Race, Gender, and Social Justice

Despite international human rights guidelines that prohibit the practice, thirty-eight states and the Federal Bureau of Prisons currently allow corrections officials to shackle pregnant inmates during the third trimester of pregnancy. Of these, twenty-three states and the Bureau also allow restraints to be used during active labor. Only two state legislatures, Illinois and California, have addressed the issue of using physical restraints on pregnant inmates; the vast majority of states rely on corrections officials to craft policy.

This article analyzes both states' justifications for shackling policies as well as the Constitutional and human rights arguments that have been posed by …

Jury Trial Innovations Across America: What We Are Teaching And Learning From Each Other, Gregory E. Mize, Paula Hannaford-Agor

Faculty Publications

Between 2004 and 2006 the National Center for State Courts conducted three related studies of jury practices in state and federal courts throughout the United States. Combined, the studies make up the State-of-the-States Sur­vey of Jury Improvement Efforts, a first-ever effort to survey the entire field of jury issues and practices from state and local jury reform and improvement efforts to in-court use of tools aimed at improving juror comprehension and participation-including note-taking, juror questions and providing jurors with written instructions. The resulting data sets are available in full online, allowing users to review their own states' practices in comparison …

The Politics Of Policing: Ensuring Stakeholder Collaboration In The Federal Reform Of Local Law Enforcement Agencies, Kami Chavis Simmons

Faculty Publications

Title 42 U.S. C. § 14141 authorizes the United States Department of Justice ("DOJ") to seek injunctive relief against local law enforcement agencies to eliminate a pattern or practice of unconstitutional conduct by these agencies. Rather than initiate lawsuits to reform these agencies, DOJ's current strategy is to negotiate reforms using a process that involves only DOJ representatives, municipality officials, and police management officials. While there are many benefits of negotiating the reforms, the current process excludes important stakeholders directly impacted by the reforms, including community members, who are the consumers of police services, and the rank-and-file police officers, whom …

Primer For U.S. Lawyers On European Union Government And Law, Charles H. Koch Jr.

Faculty Publications

No abstract provided.

Course Schedule Spring 2008, William & Mary Law School

Course Information

No abstract provided.

Report Of William & Mary Marshall-Wythe School Of Law 2007-2008, William & Mary Law School

Annual Report

No abstract provided.

Congress Has The Power To Enforce The Bill Of Rigths Against The Federal Government; Therefore Fisa Is Constitutional And The President's Terrorist Surveillance Program Is Illegal, Wilson R. Huhn

William & Mary Bill of Rights Journal

The principal point of this Article is that Congress has plenary authority to enforce the Bill of Rights against the federal government. Although this precept is a fundamental one, neither the Supreme Court nor legal scholars have articulated this point in clear, simple, and direct terms. The Supreme Court does not have a monopoly on the Bill of Rights. Congress, too, has constitutional authority to interpret our rights and to enforce or enlarge them as against the actions of the federal government. Congress exercised its power to protect the constitutional rights of American citizens when it enacted the Foreign Intelligence …

The Docket (November 30, 2007), William & Mary Law School

The Docket

No abstract provided.

The Advocate (Vol. 5, Issue 5)

Student Newspaper (Amicus, Advocate...)

No abstract provided.

The Price Of Misdemeanor Representation, Erica J. Hashimoto

William & Mary Law Review

Nobody disputes either the reality of excessive caseloads in indigent defense systems or their negative effects. More than forty years after Gideon v. Wainwright, however, few seem willing to accept that additional resources will not magically appear to solve the problem. Rather, concerned observers demand more funds while state and local legislators resist those entreaties in the face of political resistance and pressures to balance government budgets. Recognizing that indigent defense systems must operate in a world of limited resources, states should reduce the number of cases streaming into those systems by significantly curtailing the appointment of counsel in low-level …

Raise The Proof: A Default Rule For Indigent Defense, Adam M. Gershowitz

Faculty Publications

Almost everyone agrees that indigent defense in America is underfunded, but workable solutions have been hard to come by. For the most part, courts have been unwilling to inject themselves into legislative budget decisions. And, when courts have become involved and issued favorable decisions, the benefits have been only temporary because once the pressure of litigation disappears so does a legislature's desire to appropriate more funding. This Article proposes that if an indigent defense system is under-funded, the state supreme court should impose a default rule raising the standard of proof to "beyond all doubt" to convict indigent defendants. The …