Digital Commons Network^™

Brief For American Association On Mental Retardation, The Arc, The Judge David L. Bazelon Center For Mental Health Law, American Academy Of Psychiatry And The Law, And Tash, Tennard V. Dretke, James W. Ellis, Norman C. Bay, Michael Browde, Christian G. Fritz, April Land, Robert Schwartz

Faculty Scholarship

The obstacles placed by the Fifth Circuit in the path of jurors' fair consideration of a defendant's condition are inconsistent with this Court's teachings about the fundamental importance of the jury's role in determining the appropriate penalty in capital cases.

Freeing The Innocent: Obtaining Post-Conviction Dna Testing In Florida, Catherine Arcabascio

Faculty Scholarship

No abstract provided.

A Miscarriage Of Justice In Massachusetts: Eyewitness Identification Procedures, Unrecorded Admissions, And A Comparison With English Law, Stanley Z. Fisher, Ian K. Mckenzie

Faculty Scholarship

Like many other states, Massachusetts has recently known a number of acknowledged miscarriages of justice. This article examines one of them, the Marvin Mitchell case, in order to ask two questions: "What went wrong?" and "What systemic reforms might have prevented this injustice?" In seeking ideas for reform, we look to English law.

In 1990 Marvin Mitchell was convicted of rape in Massachusetts. Seven years later he became the first Massachusetts prisoner to be exonerated by DNA testing. In this article we describe the two key factors leading to Mitchell's wrongful conviction: faulty eyewitness identification procedures, and inadequate safeguards surrounding …

No Badges, No Bars: A Conspicuous Oversight In The Development Of An International Criminal Court, Mary Margaret Penrose

Faculty Scholarship

If the ICC is truly to become a world criminal court, then this body should begin to clothe itself with all the traditional components of a criminal justice system. A successful international criminal court cannot be dependent on the political will of so-called cooperating states. Crimes that fall within the jurisdiction of the ICC should be subject to prosecution by the court, which requires that there exist some body or agency capable of enforcing indictments and arresting suspected individuals. A court is but one piece of a greater body of criminal justice. In addition to the need for contemporaneous and …

One Strike And You're Out? Constitutional Constraints On Zero Tolerance In Public Education, Eric D. Blumenson, Eva Nilsen

Faculty Scholarship

Various studies reported that juvenile crimes of violence fell in the 1990s by as much as 30%. ¹⁰ In high schools specifically, the incidence of threatening behavior in 1996 changed little from two decades earlier, ¹¹ with the chances of being killed in school far less than being struck by lighting. ¹² The "juvenile crime bomb" proved illusory (as Delulio himself eventually acknowledged ¹³), but the severe measures designed to deal with it remain entrenched. Zero tolerance has taken on a life of its own, partly because public misperception remains high, ¹⁴ and partly because in our hardheaded times …

Is It Ever Too Late For Innocence? Finality, Efficiency, And Claims Of Innocence, George C. Thomas, Gordon G. Young, Keith Sharfman, Kate B. Briscoe

Faculty Scholarship

No abstract provided.

Solving The Nonresident Alien Due Process Paradox In Personal Jurisdiction, Robin J. Effron

Faculty Scholarship

No abstract provided.

Can A Model Penal Code Second Save The States From Themselves?, Michael T. Cahill, Paul H. Robinson

Faculty Scholarship

No abstract provided.

Responsibility And Blame: Psychological And Legal Perspectives - Introduction, Lawrence M. Solan

Faculty Scholarship

No abstract provided.

Fifteen Years After The Federal Sentencing Revolution: How Mandatory Minimums Have Undermined Effective And Just Narcotics Sentencing Perspectives On The Federal Sentencing Guidelines And Mandatory Sentencing, Ian Weinstein

Faculty Scholarship

Federal criminal sentencing has changed dramatically since 1988. Fifteen years ago, judges determined if and for how long a defendant would go to jail. Since that time, changes in substantive federal criminal statutes, particularly the passage of an array of mandatory minimum penalties and the adoption of the federal sentencing guidelines, have limited significantly judicial sentencing power and have remade federal sentencing and federal criminal practice. The results of these changes are significantly longer federal prison sentences, as was the intent of these reforms, and the emergence of federal prosecutors as the key players in sentencing. Yet, at the same …

Mental Retardation And The Death Penalty: A Guide To State Legislative Issues, James W. Ellis

Faculty Scholarship

The interest in State Legislatures in the topic of mental retardation and the death penalty has obviously heightened with the U.S. Supreme Court's decision in Atkins v. Virginia.' The purpose of this document is to provide legislators and advocates with guidance in implementing the Atkins decision, so that each State's death penalty legislation is in full compliance with constitutional requirements.

Rosalie Wahl's Vision For Legal Education: Clinics At The Heart, Ann Juergens

Faculty Scholarship

Rosalie Wahl holds a special place in the hearts of Minnesota lawyers. Many women and girls, especially, were gratified when Governor Rudy Perpich appointed her the first woman on the Minnesota Supreme Court in 1977. There were no more than nine other women on supreme courts around the country at the time, and none on the U.S. Supreme Court. She served on the court until 1994, when the law mandating judges’ retirement at age seventy caused her to step down from the bench. This essay highlights the significance of Wahl’s work as a clinical legal educator and activist for legal …

Institutionalization Of Mediation In Florida: At The Crossroads, Sharon Press

Faculty Scholarship

n this article, Press identifies some of the positive and negative impacts of institutionalization on mediation by reviewing some of the intended and unintended consequences of Florida's court-connected mediation experience. While institutionalization has had many positive impacts, there also are potential reasons for concern.

In this article, the author provides an overview of the historical development of mediation in Florida, describes the current status of mediation within the Florida court system, and details some of the positive and negative consequences of the institutionalization of mediation drawn from the Florida experience. The article concludes with initial reflections on what this means …

Proxies For Loyalty In Constitutional Immigration Law: Citizenship And Race After September 11, Victor C. Romero

Faculty Scholarship

The purpose of this article is to share some thoughts about using citizenship and race as proxies for loyalty in constitutional immigration discourse within two contexts: one historical and one current. The current context is the profiling of Muslim and Arab immigrants post-September 11, and the historical context is the distinction the Constitution draws between birthright and naturalized citizens in the Presidential Eligibility Clause.

Towards A New Scholarship For Equal Justice, James S. Liebman

Faculty Scholarship

Over the last thirty years, the legal academy has turned a cold shoulder to the subject matter of this symposium: scholarship for equal justice. I am here to suggest that a thaw may be on the way. By scholarship for equal justice – as distinguished from scholarship about that topic – I mean academic work undertaken for the purpose of improving outcomes for individuals and members of groups who have been systematically held back by their race, sex, poverty, or any other basis for rationing success that our legal system treats with suspicion. With reference to some of my own …

Still Tough On Crime? Prospects For Restorative Justice In The United States, Sara Sun Beale

Faculty Scholarship

No abstract provided.

The Importance Of Recognizing The Underlying Assumptions Of Legal And Moral Arguments: Of Law And Rawls, George C. Christie

Faculty Scholarship

No abstract provided.

Jurors As Statutory Interpreters, Lawrence Solan

Faculty Scholarship

No abstract provided.

A Signaling Theory Of Human Rights Compliance, David H. Moore

Faculty Scholarship

No abstract provided.

The Gatekeeping Role In Civil Litigation And The Abdication Of Legal Values In Favor Of Scientific Values, Neil B. Cohen

Faculty Scholarship

No abstract provided.

Domestic Violence In Legal Education And Legal Practice: A Dialogue Between Professors And Practitioners, Stacy Caplow

Faculty Scholarship

No abstract provided.

A Mind To Blame: New Views On Involuntary Acts, Deborah W. Denno

Faculty Scholarship

This article examines the legal implications linked to recent scientific research on human consciousness. The article contends that groundbreaking revelations about consciousness expose the frailties of the criminal law's traditional dual dichotomies of conscious versus unconscious thought processes and voluntary versus involuntary acts. These binary doctrines have no valid scientific foundation and clash with other key criminal law defenses, primarily insanity. As a result, courts may adjudicate like individuals very differently based upon their (often unclear) understanding of these doctrines and the science that underlies them. This article proposes a compromise approach by recommending that the criminal law's concept of …

The (Un)Favorable Judgment Of History: Deportation Hearings, The Palmer Raids, And The Meaning Of History, Harlan G. Cohen

Faculty Scholarship

As Americans respond to the events of September 11, 2001, they are being forced to contemplate their place in American history-past, present, and future. This has become particularly stark in the fight over secret deportation hearings. Following September 11, Attorney General John Ashcroft announced that the deportation hearings of "special interest" aliens would be closed to the public. Applying Richmond Newspapers's two-pronged logic-and-experience test, the Third and Sixth Circuits subsequently split over the constitutionality of the blanket closure. At the heart of their disagreement was the scarce history of deportation hearings and whether such hearings had been closed in the …

Due Process - Prosecutorial Implications Of A Victim's Rightr To Be Heard: Court Upholds Victim's Right To Be Heard At Important Criminal Justice Hearings, Gina Warren

Faculty Scholarship

In State v. Casey, the Supreme Court of Utah was presented with questions regarding a victim's right to be heard at a change of plea hearing and standing to appeal an adverse ruling in relation to his right to be heard, as well as the appropriate form of notification and invocation of such rights. By relying heavily on the plain language of the Victims' Rights Amendment of the Utah Constitution, the Utah Victims' Rights Act and the Utah Rights of Crime Victims Act, the court held that the victim: "(1) had the right to appeal the district court's rulings …

Problem-Solving Courts: From Innovation To Institutionalization, Michael C. Dorf, Jeffrey A. Fagan

Faculty Scholarship

The phenomenal growth of drug courts and other forms of "problem-solving" courts has followed a pattern that is characteristic of many successful innovations: An individual or small group has or stumbles upon a new idea; the idea is put into practice and appears to work; a small number of other actors adopt the innovation and have similar experiences; if there is great demand for the innovation – for example, because it responds to a widely-perceived crisis or satisfies an institutional need and resolves tensions within organizations that adopt it – the innovation rapidly diffuses through the networks in which the …

Blaming Youth, Elizabeth S. Scott, Laurence Steinberg

Faculty Scholarship

In March of 2001, a fourteen-year-old Florida boy named Lionel Tate was sentenced to life in prison without parole for killing six-year-old Tiffany Eunick during a wrestling match that took place when Lionel was twelve years old. Lionel was convicted of first degree murder on the ground that the killing was the result of aggravated child abuse, a crime that contemplates injury of a child by an adult caretaker. His conviction and sentence have prompted much debate and discussion – about his case and, more generally, about the criminal punishment of young offenders. Although the verdict and Lionel's sentence received …

Why Defenders Feel Defensive, Jane M. Spinak

Faculty Scholarship

The newest version of problem-solving courts has scarcely reached adolescence. Many of these courts remain in the "model" stage, attempting to create a structure and vision that will have a transformative, systemic effect. Others, drug courts in particular, have proliferated across the country and are on the verge of going to scale in many states. Lawyers representing individual clients in these courts are struggling to identify, define and perform their professional duties, at the same time that the courts are being created. To understand why it is a struggle, we need to contextualize the lawyers' experiences: what is it about …

Damage To Family Relationships As A Collateral Consequence Of Parental Incarceration, Philip Genty

Faculty Scholarship

The most obvious and perhaps most serious collateral consequence of incarceration is family separation. Imprisonment undermines families and has a detrimental impact upon children, caretakers, and the communities in which they live. Unlike other collateral consequences, family separation has an irreversible impact upon both parents and children. The time apart is lost forever because a childhood can never be recovered.

This Essay will review the available statistical information about incarcerated parents and their children and discuss the detrimental effects of parental incarceration upon families. The Essay will conclude with some reflections about why the adverse consequences of incarceration for prisoners' …

Critical Race Theory In Three Acts: Racial Profiling, Affirmative Action, And The Diversity Visa Lottery, Victor C. Romero

Faculty Scholarship

The usual debates surrounding multiculturalism pit individual rights against group grievances in a variety of contexts including racial profiling, affirmative action, and the diversity visa lottery, often with seemingly contradictory results. Liberals often favor affirmative action but decry both racial profiling and the diversity visa lottery, while many conservatives hold the opposite view. Critical race theory provides a unique alternative to stock liberal and conservative arguments, allowing one to draw meaningful and persuasive distinctions among these seminal issues surrounding law enforcement, education, and immigration policy.

Rethinking The Death Penalty: Can We Define Who Deserves Death – A Symposium Held At The Association Of The Bar Of The City Of New York May 22, 2002, Martin J. Leahy, Norman L. Greene, Robert Blecker, Jeffrey L. Kirchmeier, William M. Erlbaum, David Von Drehle, Jeffrey A. Fagan

Faculty Scholarship

In light of the defects of the capital punishment system and recent calls for a moratorium on executions, many are calling for serious reform of the system. Even some who would not eliminate the death penalty entirely propose reforms that they contend would result in fewer executions and would limit the death penalty to a category that they call the "worst of the worst." This program asks the question: Is there a category of defendants who are the "worst of the worst?" Can a crime be so heinous that a defendant can be said to "deserve" to be executed? Would …