Digital Commons Network^™

When Is When?: 8 U.S.C. § 1226(C) And The Requirements Of Mandatory Detention, Gerard Savaresse

Fordham Law Review

    Over the past several decades, immigration law has come to resemble criminal law in a number of ways. Most significantly, the current statutory regime allows the U.S. Attorney General (AG) to detain noncitizens during their removal proceedings. Ordinarily, the AG may detain noncitizens subject to removal so long as the AG provides an individualized bond hearing to assess whether the noncitizen poses a flight risk or a danger to the community. Pursuant to 8 U.S.C. § 1226(c), however, the AG must detain and hold without bond any noncitizen who has committed qualifying offenses “when the alien is released” from criminal …

Plea Bargaining In The Dark: The Duty To Disclose Exculpatory Brady Evidence During Plea Bargaining, Michael Nasser Petegorsky

Fordham Law Review

   Ninety-seven percent of federal convictions are the result of guilty pleas. Despite the criminal justice system’s reliance on plea bargaining, the law regarding the prosecution’s duty to disclose certain evidence during this stage of the judicial process is unsettled. The Supreme Court’s decision in Brady v. Maryland requires the prosecution to disclose evidence that establishes the defendant’s factual innocence during a trial. Some courts apply this rule during plea bargaining and require the disclosure of material exculpatory evidence before the entry of a guilty plea. Other courts have held or suggested that the prosecution may suppress exculpatory evidence during plea …

Is It Safe? The Need For State Ethical Rules To Keep Pace With Technological Advances, Ann M. Murphy

Fordham Law Review

No abstract provided.

Recognizing The Right To Petition For Victims Of Domestic Violence, Tamara L. Kuennen

Fordham Law Review

    Like any citizen, a victim of domestic violence (DV) may call the police for help when she needs it. And yet, when a victim calls the police, she not only seeks law enforcement assistance but also invokes her constitutional right to seek one of the most fundamental services the government can provide—protection from harm. That right, recently described by the Supreme Court as “essential to freedom,” is the right “to petition the Government for a redress of grievances” guaranteed by the First Amendment.

    This Article argues that a combination of law and policy initiatives produces negative collateral consequences for DV …

The Moral Complexity Of Cause Lawyers Within The State, David Luban

Fordham Law Review

No abstract provided.

A Call To Action—Examining Nepal’S Post-Conflict Strategy Toward Persons Accused Of Gross Human Rights Abuses, Jennifer Chiang

Fordham Law Review

   This Note analyzes Nepal’s attempts to establish accountability and the rule of law in the aftermath of its ten-year civil war. It compares Nepal’s treatment of persons implicated in gross human rights violations with the international human rights legal framework surrounding a state’s international obligations, particularly in its use of transitional justice mechanisms. It argues that Nepal’s failure to bring either administrative sanctions or criminal prosecutions against officials accused of human rights abuses—and its reliance instead on truth commissions—undermines the rule of law and violates the country’s international human rights obligations.

A Gate Forever Closed? Retiring Immigration Law’S Post-Departure Bar, Jonathan H. Ross

Fordham Law Review

   Immigration law’s “post-departure bar” destroys the jurisdiction of either an immigration judge or the Board of Immigration Appeals to hear a motion to reopen or reconsider filed by an alien who is no longer physically within the country. This Note examines the current conflict between the federal circuits regarding the post-departure bar and why the circuits that have decided to strike down the bar in the cases before them have ruled in line with certain trends present in recent Supreme Court immigration cases.

   Conflict between the circuits has arisen because the governing statute, the Illegal Immigration Reform and Immigrant Responsibility …

Corporate Law Firms, Ngos, And Issues Of Legitimacy For A Global Legal Order, Yves Dezalay, Bryant G. Garth

Fordham Law Review

No abstract provided.

Cooperative Justice: Understanding The Future Of The International Criminal Court Through Its Involvement In Libya, Brenan Leanos

Fordham Law Review

No abstract provided.

Foreword: Root Causes Of The Pro Se Prisoner Litigation Crisis, Michael W. Martin

Fordham Law Review

No abstract provided.

Computers As Castles: Preventing The Plain View Doctrine From Becoming A Vehicle For Overbroad Digital Searches , James Saylor

Fordham Law Review

The plain view doctrine is based on the practical logic that an officer need not turn a blind eye to evidence that is immediately apparent as incriminating when he is lawfully present, where the object can be seen, and where he has a legal right to access that object. However, in the context of digital searches, this basic logic is stretched to a point that directly conflicts with the original purposes of the Fourth Amendment. The immense amount of data present on computers makes these searches much more intrusive. Officers employ search methods and techniques to access files that involve …

Blanket Policies For Strip Searching Pretrial Detainees: An Interdisciplinary Argument For Reasonableness , Daphne Ha

Fordham Law Review

In 2010, the U.S. Courts of Appeals for the Third and Ninth Circuits joined the U.S. Court of Appeals for the Eleventh Circuit in upholding the constitutionality of blanket strip search policies in correctional institutions. As a result, more government officials across the country can strip search arrestees and pretrial detainees as a matter of routine procedure without any reasonable suspicion that the detainees have contraband. These detainees include individuals without criminal histories who are arrested for traffic or other minor offenses, and who have done nothing to suggest that they are attempting to smuggle contraband into correctional facilities. This …

Extracting Compassion From Confusion: Sentencing Noncitizens After United States V. Booker, Francesca Brody

Fordham Law Review

A noncitizen facing a federal judge for sentencing confronts a demonstrably different future than an otherwise identical citizen. Deportation, immigration detention, harsher prison conditions, and a longer actual sentence may all await the noncitizen federal inmate. The U.S. Courts of Appeals have disagreed as to whether a district judge can consider those consequences in crafting a sentence under the U.S. Sentencing Guidelines. This Note argues that the circuit split results from circuit courts’ varying appellate scrutiny of sentencing decisions after United States v. Booker. To resolve the split, this Note encourages the U.S. Sentencing Commission to adopt an amendment to …

Alien Language: Immigration Metaphors And The Jurisprudence Of Otherness , Keith Cunningham-Parmeter

Fordham Law Review

Metaphors tell the story of immigration law. Throughout its immigration jurisprudence, the U.S. Supreme Court has employed rich metaphoric language to describe immigrants attacking nations and aliens flooding communities. This Article applies research in cognitive linguistics to critically evaluate the metaphoric construction of immigrants in the law. Three conceptual metaphors dominate legal texts: immigrants are aliens, immigration is a flood, and immigration is an invasion. In order to gauge the prevalence of these metaphors, the Article engages in a textual analysis of modern Supreme Court opinions and presents original empirical data on the incidence of alienage terminology in federal court …

Holland V. Florida: A Prisoner’S Last Chance, Attorney Error, And The Antiterrorism And Effective Death Penalty Act’S One-Year Statute Of Limitations Period For Federal Habeas Corpus Review, Marni Von Wilpert

Fordham Law Review

No abstract provided.

The Possibility Of Transfer(?): A Comprehensive Approach To The International Criminal Tribunal For Rwanda’S Rule 11bis To Permit Transfer To Rwandan Domestic Courts, Jesse Melman

Fordham Law Review

No abstract provided.

The Lawyer's “Prisoner's Dilemma”: Duty And Self-Defense In Postconviction Ineffectiveness Claims, Jenna C. Newmark

Fordham Law Review

Many criminal defendants who face significant sentences and are unsuccessful on appeal petition for collateral habeas corpus relief. One common ground for postconviction relief is that defense counsel was unconstitutionally ineffective before, during, or after trial. This presents an ethical dilemma for those defense attorneys who have withdrawn from representation and are accused of being ineffective. Should an accused lawyer disclose confidential client information to the prosecution in self- defense against these claims? Or should the lawyer, even in the face of attacks on his work, help his former client in substantiating ineffectiveness claims? Lawyers and courts must balance the …

Panel Two: Should There Be Remote Public Access To Court Filings In Immigration Cases?, The Honorable Robert Hinkle, David Mccraw, Daniel Kanstroom, Eleanor Acer

Fordham Law Review

No abstract provided.

Broken Borders, Broken Laws: Aligning Crime And Punishment Under Section 2l1.1(B)(7) Of The U.S. Sentencing Guidelines, Genevieve Quinn

Fordham Law Review

Despite the intensifying militarization of the United States’ borders, roughly 4,000 undocumented immigrants attempt to cross into the U.S. each day. Increased border security has not stopped the flow; rather, it has diverted migrants’ journeys into the most perilous stretches of borderlands and coastlines. In response, migrants increasingly rely on human smugglers to guide them across the border, even in the face of the well-known risks of injury and death. Under section 2L1.1(b)(7) of the U.S. Sentencing Guidelines, defendants convicted of smuggling illegal immigrants are subject to a sentence enhancement for any bodily injury or death that occurs. The Guidelines …

The Supreme Court Assumes Errant Prosecutors Will Be Disciplined By Their Offices Or The Bar: Three Case Studies That Prove That Assumption Wrong, Joel B. Rudin

Fordham Law Review

No abstract provided.

Unsupportable And Unjustified: A Critique Of Absolute Prosecutorial Immunity, Margaret Z. Johns

Fordham Law Review

No abstract provided.

Elusive Empowerment: Compensating The Sex Trafficked Person Under The Trafficking Victims Protection Act, Theodore R. Sangalis

Fordham Law Review

Globally, hundreds of thousands-perhaps millions-are being forced or coerced into commercial sex acts. In the United States, this sex trafficking problem has become a lucrative illegal industry, and it is quickly growing. In response, Congress passed the Trafficking Victims Protection Act of 2000 (TVPA) to eradicate the industry by prosecuting the perpetrators, protecting the victims, and preventing the practice. Through several reauthorizations, one federal strategy that has emerged is compensating the victims through mandatory criminal restitution and civil remedies. Collection of restitution damages has been lacking, however, and no civil suit filed for sex trafficking survivors has reached the merits. …

Weaving Functional Brain Imaging Into The Tapestry Of Evidence: A Case For Functional Neuroimaging In Federal Criminal Courts, Adam Teitcher

Fordham Law Review

Recent advances in brain imaging technologies allow researchers to "peer inside" a defendant's brain. Although functional neuroimaging evidence is frequently used in civil litigation, federal courts have been hesitant to admit it into evidence in criminal trials. Scholars and commentators alike continue to debate the merits, detriments, and general admissibility of functional neuroimaging evidence in the criminal context. Meanwhile, federal judges repeatedly admit various forms of forensic science into evidence without evaluating them under the appropriate admissibility standards. This Note argues that this has created a double standard for evidence admissibility. Functional neuroimaging evidence may, in fact, be more scientifically …

Dna And Due Process, Brandon L. Garrett

Fordham Law Review

The U.S. Supreme Court in District Attorney’s Office v. Osborne confronted novel and complex constitutional questions regarding the postconviction protections offered to potentially innocent convicts. Two decades after DNA testing exonerated the first inmate in the United States, the Court heard its first claim by a convict seeking DNA testing that could prove innocence. I argue that, contrary to early accounts, the Court did not reject a constitutional right to postconviction DNA testing. Despite language suggesting the Court would not “constitutionalize the issue” by announcing an unqualified freestanding right, Chief Justice Roberts’s majority opinion proceeded to carefully fashion an important, …

Getting A Fix On Cocaine Sentencing Policy: Reforming The Sentencing Scheme Of The Anti-Drug Abuse Act Of 1986, Alyssa L. Beaver

Fordham Law Review

The now-infamous “War on Drugs” campaign of the 1980s culminated in the adoption of the Anti-Drug Abuse Act of 1986, which included a provision for a one-hundred-to-one sentencing ratio of powder cocaine to crack cocaine. This ratio provides that the penalty for a crime involving five or ten grams of crack cocaine is equivalent to the sentence for a crime involving five hundred or one thousand grams of powder cocaine. This structure has led to a racial disparity in sentencing because African Americans are more often charged with a crack cocaine offense than Caucasians, who are usually indicted for powder …

Lightening The Load: Whether The Burden Of Proof For Overcoming A Patent's Presumption Of Validity Should Be Lowered, Kristen Dietly

Fordham Law Review

Patents fuel innovation and are becoming an ever-more important form of protection in this technological age. Society also has a vested interest in only valid patents being issued and enforced. Patents are presumed valid once they are issued and also currently enjoy the application of a heavy burden of proof—clear and convincing evidence—to overcome that presumption when their validity is questioned at trial. This burden has started to be questioned as the U.S. Patent and Trademark Office becomes more taxed by the increasing influx of patent applications. Current precedent conflicts with past precedent and with general principles of administrative law. …

Baseless Pleas: A Mockery Of Justice, Mari Byrne

Fordham Law Review

This Note addresses the ethicality of the baseless plea, a guilty plea entered by a defendant for a crime that everyone in the courtroom—judge, prosecutor, defense attorney, and defendant—knows the defendant did not commit. Used in the interest of efficiency and leniency, the baseless plea allows a defendant to plead guilty to a crime that has no basis in the facts of the case. Though used by courts in numerous jurisdictions, baseless pleas have been largely unaddressed as courts have sought to conceal the practice and as commentators have therefore failed to detect it. This Note seeks to remedy that …

To Catch A Predator Or To Save His Marriage: Advocating For An Expansive Child Abuse Exception To The Marital Privileges In Federal Courts, Emily C. Aldridge

Fordham Law Review

In prosecutions for child abuse, the government’s most valuable witness is often the defendant’s spouse. Ordinarily, the marital privileges allow a witness to refuse to testify or a defendant to bar his or her spouse’s testimony. When a defendant is on trial for a crime committed against a child, however, the privileges are unavailable. Although this exception aims to serve justice on behalf of innocent children, its applicability often hinges on the relationship between perpetrator and victim. In some federal courts, the minor victim must be the child or stepchild of the defendant, while others have held the exception applicable …

Matters Of Public Safety And The Current Quarrel Over The Scope Of The Quarles Exception To Miranda, Rorie A. Norton

Fordham Law Review

In October 1984, the Burger Court set forth an exception to the Miranda doctrine in New York v. Quarles permitting officers to intentionally abstain from administering Miranda warnings to suspects where a threat to the safety of the public or officers exists. However, latent ambiguity arising from the Quarles decision authored by Justice William Rehnquist has resulted in a split among the federal courts of appeals as to what constitutes a “public safety threat.” Some courts broadly extend the Quarles exception to inherently dangerous situations, including the threat of an officer mishandling an undiscovered weapon. Other courts narrowly apply Quarles …

Combat Veterans, Mental Health Issues, And The Death Penalty: Addressing The Impact Of Post-Traumatic Stress Disorder And Traumatic Brain Injury, Anthony E. Giardino

Fordham Law Review

More than 1.5 million Americans have participated in combat operations in Iraq and Afghanistan over the past seven years. Some of these veterans have subsequently committed capital crimes and found themselves in our nation’s criminal justice system. This Essay argues that combat veterans suffering from post-traumatic stress disorder or traumatic brain injury at the time of their offenses should not be subject to the death penalty. Offering mitigating evidence regarding military training, post-traumatic stress disorder, and traumatic brain injury presents one means that combat veterans may use to argue for their lives during the sentencing phase of their trials. Alternatively, …