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Constitutionally Incapable: Parole Boards As Sentencing Courts, Mae C. Quinn

Journal Articles

Courtroom sentencing, as part of the judicial process, is a long-standing norm in the justice system of the United States. But this basic criminal law precept is currently under quiet attack. This is because some states are now allowing parole boards to step in to decide criminal penalties without first affording defendants lawful judicial branch sentencing proceedings and sentences. These outside-of-court punishment decisions are occurring in the cases of youthful offenders entitled to sentencing relief under Miller v. Alabama, which outlawed automatic life-without-parole sentences for children. Thus, some Miller-impacted defendants are being sentenced by paroleboards as executive branch agents, rather …

Fallen Woman (Re) Frame: Judge Jean Hortense Norris, New York City - 1912-1955, Mae C. Quinn

Journal Articles

No abstract provided.

Article Iii Adultification Of Kids: History, Mystery, And Troubling Implications Of Federal Youth Transfers, Mae Quinn, Grace R. Mclaughlin

Journal Articles

There is no federal juvenile court system in the United States. Rather, teens can face charges in Article III courts and can be transferred to be tried and sentenced as adults in these venues. This Article is the first of two articles in the Washington and Lee Journal of Civil Rights and Social Justice seeking to shed light on the largely invisible processes and populations involved in federal youth prosecution. This Article focuses on the federal transfer and prosecution of American youth as adults. It considers constitutional and statutory law relating to these federal transfers and then considers why current …

Youth Suffrage: In Support Of The Second Wave, Mae Quinn, Caridad Dominguez, Chelsey Omega, Abrafi Osei-Kofi, Carlye Owens

Journal Articles

The 100th anniversary of the 19th Amendment to the United States Constitution is an appropriate moment to reflect on the history—and consider the future—of the right to vote in the United States. High school and college classes teach the nation’s suffrage story as integral to our identity, focusing on the enfranchisement of women under the 19th Amendment and African Americans pursuant to the 15th Amendment.1 Constitutional law courses also present the 15th Amendment as foundational knowledge for the legal profession.2 Critical legal theory and women’s legal history texts frequently cover the 19th Amendment as central to understanding the first wave …

Reframing Radical Religion, Vanita Saleema Snow

Journal Articles

Like a thief in the night,1 politicians have stolen religion for their deceptive vices, using the term “radicalization” or “terrorism” to meet their needs.2 See Sahar F. Aziz, Caught in a Preventive Dragnet: Selective Counterterrorism in a Post-9/11 America, 47 GONZ. L. REV. 429, 481 (2012) (discussing how a police report equates “Muslim religiosity with radicalization toward terrorism”); David A. Bosworth, American Crusade: The Religious Roots of the War on Terror, 7 BARRY L. REV. 65, 65 (2006) (noting that American news and popular culture often portray religious people as “narrow-minded bigots out to destroy everything good and decent”); Ned …

Why Mississippi Should Reform Its Penal Code, Judith J. Johnson

Journal Articles

The Mississippi Penal Code was determined at the turn of this century to be the fifty-second-worst penal code in the United States. As much as Mississippi is often used to being-and is even proudly defiant for being-ranked low on national scales, this is an issue about which we should be deeply concerned. A well-drafted penal code is crucial because it is at the core of the primary value of justice. While we are experienced with being ranked last in many situations, often unfairly, the criticism of the Mississippi Penal Code is accurate. Although many of the cited defects are ameliorated …

Show Me The Money: An Empirical Analysis Of Interest Group Opposition To Federal Courts Of Appeals Nominees, Donald E. Campbell, Marcus Hendershot

Journal Articles

Contemporary views of the federal judicial appointment process are grounded in themes of obstruction and gridlock. Within this environment, interest groups find fertile ground to target, and sometimes successfully oppose, judicial nominees that once automatically moved through the appointment process and ended in confirmation. While interest group involvement and influence is an accepted fact, much less is known about the efficacy of these groups in carrying out their objective of correctly identifying ideological outlier nominees. This article asks the question: Do interest groups correctly identify and target nominees who are ideological outliers? The article implements a research design that evaluates …

Multi-Partner Fertility In A Disadvantaged Population: Results And Policy Implications Of An Empirical Investigation Of Paternity Actions In St. Joseph County, Indiana, Margaret F. Brinig, Marsha Garrison

Journal Articles

In this paper, we report data on multi-partner fertility (MPF) in a population of children and parents for whom paternity actions were brought, in 2008 or 2010, in St. Joseph County, Indiana. The computerized, court-based record system we utilized enabled us to collect information on parental characteristics and child outcomes that other MPF researchers have been unable to access. Our research thus offers a unique, data-rich window into an important, and growing, aspect of contemporary family life. It also points the way to needed shifts in family policy and law.

Federalization's Folly, Stephen F. Smith

Journal Articles

Overcriminalization and overpunishment are the two key features of federal criminal law today, yet the constant drumbeat to “federalize” criminal law has accomplished precious little in terms of public safety. The failed drug war proves as much: federal prosecutors have filled the nation’s prisons with low-level drug dealers and drug users serving long sentences, but drugs remain widely available at greater purity and lower prices throughout the land — and drug overdoses are at record highs. Instead of focusing on areas of federal comparative advantage, such as terrorism, international drug trafficking, and organized crime, federal prosecutors waste scarce resources “playing …

Getting Blood From Stones: Results And Policy Implications Of An Empirical Investigation Of Child Support Practice In St. Joseph County, Indiana Paternity Actions, Margaret F. Brinig, Marsha Garrison

Journal Articles

Today, there is consensus that the current system of calculating and enforcing support obligations does not work well for disadvantaged families, most of which are nonmarital. Nonmarital children are less likely to have support orders established than marital children, and they are much less likely to experience full payment.

In this paper, we report data on parenting time, child support calculation, and enforcement actions in a population of nonmarital children for whom paternity actions were brought, in 2008 or 2010, in St. Joseph County, Indiana. The computerized, court-based record system we utilized to collect data gave us access to information …

Comparative Analysis As An Antidote To Tunnel Vision In Criminal Law Reform: The Example Of Complicity, Luis E. Chiesa

Journal Articles

In the context of criminal law reform, the tunnel vision that is produced by deeply embedded paradigms or patterns of criminality has the effect of stifling creativity. If left unchecked, the assumptions that serve as the backdrop to our criminal justice system will likely prevent reformers from giving serious consideration to alternatives that are in tension with the dominant patterns of criminality. I will end by arguing that one way of avoiding this outcome is by engaging in the comparative analysis of criminal law. Comparative analysis serves as a kind of “second opinion” that may help criminal law reformers to …

The Model Penal Code, Mass Incarceration, And The Racialization Of American Criminal Law, Luis E. Chiesa

Journal Articles

No abstract provided.

Defining The Economic Pie, Not Dividing Or Maximizing It, Martha T. Mccluskey

Journal Articles

This essay challenges the question that drives much of legal analysis: whether to maximize or divide the “economic pie.” Regardless of the answer, this question skews legal analysis and rests on dubious economics. This framing binary inherently presents economic maximizing as the presumptive norm, represented as superior to socioeconomic distribution in both spatial and temporal dimensions. By definition, economic “maximizing” stands larger in scope and first in order. The essay first critiques the idea that legal analysis can aim to make the economy bigger without engaging contested questions of value and politics, showing how this misleading separation of quantity from …

Are We Economic Engines Too? Precarity, Productivity, And Gender, Martha T. Mccluskey

Journal Articles

No abstract provided.

Predictors Of Aggression In 3.322 Patients With Affective Disorders And Schizophrenia Spectrum Disorders Evaluated In An Emergency Department Setting, E. A. Blanco, L. M. Duque, V. Rachamallu, E. Yuen, J. M. Kane, J. A. Gallego

Journal Articles

No abstract provided.

The New Gospel Of Wealth: On Social Impact Bonds And The Privatization Of Public Good, Etienne C. Toussaint

Journal Articles

Since Andrew Carnegie penned his famous Gospel of Wealth in 1889, corporate philanthropists have championed considerable public good around the world, investing in a wide range of social programs addressing a diversity of public issues, from poverty to healthcare to criminal justice. Nevertheless, the problem of “the Rich and the Poor,” as termed by Andrew Carnegie in his famous essay, remains unsolved. Socially conscious investors have recently called for America to reimagine a new “gospel of wealth”, one that not only grapples with the what of social injustice, but also explores the how and the why of systemic social and …

Policing The Prosecutor: Race, The Fourth Amendment, And The Prosecution Of Criminal Cases, Renee Mcdonald Hutchins

Journal Articles

As this article explores, while the Fourth Amendment is commonly criticized for the discretion it affords police officers, an overlooked result of the amendment’s lax regulation of the police is the enhanced power it affords prosecutors. Though for a time a warrant was the notional measure of reasonableness, over the last century the Court has crafted several exceptions to that measure to give the police greater leeway during on-the-street encounters. The Court has concurrently retreated from robust application of the exclusionary rule to remedy constitutional violations. These shifts have meant far more predictable wins for the prosecution at the suppression …

Backward Progress Toward Reinstating Parental Rights, Lashanda Adams

Journal Articles

States have passed reinstatement statutes to address the increased number of legal orphans in the foster care system. For the most part, however, these laws have been inadequate to address the problem because they are motivated by a view of terminated parents that does not fit current realities. Terminated parents have typically been viewed as obstacles to permanence rather than a realistic placement option. The laws often punish parents who opposed the termination of their parental rights and reward those who voluntarily signed relinquishments.

Reinstatement statutes alone are inadequate to address the growing concern over youth aging out of foster …

From The Dark Tower: Unbridled Civil Asset Forfeiture, Saleema Saleema Snow

Journal Articles

The Black Lives Matter movement reinforces that race dominates all aspects of the judicial system. Police officers are significantly more likely to stop African Americans than Whites. Even when a stop or arrest is unwarranted, law enforcement agencies can still profit from the property seized under the guise of forfeiture statutes. Various state and federal civil asset forfeiture statutes legitimize law enforcement seizing cash, homes, cars, and office equipment—all with nominal due process protections. Despite evidence of discriminatory police practices, the U.S. Supreme Court deems these forfeiture practices constitutional.

This article seeks to reignite the conversation about discriminatory policing and …

Preliminary Examination In The United States Military: Quality Control And Reform, Frank Rosenblatt

Journal Articles

This chapter considers the process of preliminary examination used by the United States (‘US’) military during its extended missions in Afghanistan and Iraq since 2001.

"Innocence" And The Guilty Mind, Stephen F. Smith

Journal Articles

For decades, the “guilty mind” requirement in federal criminal law has been understood as precluding punishment for “morally blameless” (or “innocent”) conduct, the goal being to define the mental element in terms that will protect offenders from conviction unless they had adequate notice of the wrongfulness of their conduct. The Supreme Court’s recent decision in Elonis v. United States signals a significant shift in mens readoctrine, recognizing for the first time the potential for disproportionately severe punishment as a justification for heightened mens rea requirements. This long-overdue doctrinal move makes perfect sense because punishment without culpability and excessive punishment …

Post-Accountability Accountability, Nicole Stelle Garnett

Journal Articles

Over the past few decades, parental choice has exploded in the United States. Yet, despite early proponents’ hopes that parental choice would eliminate the need to regulate school quality—since parents’ choices would serve an accountability function—demands to use the law to hold chosen schools accountable for their academic performance are central features of education-reform debates today. This is an opportune time to consider the issue of academic accountability and parental choice. Parental choice has gained a firm foothold in the American educational landscape. As it continues to expand, debates about accountability for chosen schools will only intensify. The questions of …

The Death Penalty As Incapacitation, Marah Stith Mcleod

Journal Articles

Courts and commentators give scant attention to the incapacitation rationale for capital punishment, focusing instead on retribution and deterrence. The idea that execution may be justified to prevent further violence by dangerous prisoners is often ignored in death penalty commentary. The view on the ground could not be more different. Hundreds of executions have been premised on the need to protect society from dangerous offenders. Two states require a finding of future dangerousness for any death sentence, and over a dozen others treat it as an aggravating factor that turns murder into a capital crime.

How can courts and commentators …

Canadian Federalism In Design And Practice: The Mechanics Of A Permanently Provisional Constitution, James A. Gardner

Journal Articles

This paper examines the interaction between constitutional design and practice through a case study of Canadian federalism. Focusing on the federal architecture of the Canadian Constitution, the paper examines how subnational units in Canada actually compete with the central government, emphasizing the concrete strategies and tactics they most commonly employ to get their way in confrontations with central authority. The evidence affirms that constitutional design and structure make an important difference in the tactics and tools available to subnational units in a federal system, but that design is not fully constraining: there is considerable evidence of extraconstitutional innovation and improvisation …

Fortifying The Self-Defense Justification Of Punishment, Zac Cogley

Journal Articles

David Boonin has recently advanced several challenges to the self-defense justification of punishment. Boonin argues that the self-defense justification of punishment justifies punishing the innocent, justifies disproportionate punishment, cannot account for mitigating excuses, and does not justify intentionally harming offenders as we do when we punish them. In this paper, I argue that the self-defense justification, suitably understood, can avoid all of these problems. To help demonstrate the self-defense theory’s attraction, I also develop some contrasts between the self-defense justification, Warren Quinn’s better known ‘auto-retaliator’ argument, and desert-based justifications of punishment. In sum, I show that the self-defense justification of …

A Silent Struggle: Constitutional Violations Against The Hearing Impaired In New York State Prisons, Farina Barth

Journal Articles

No abstract provided.

Semantic Vagueness And Extrajudicial Constitutional Decisionmaking, Anthony O'Rourke

Journal Articles

No abstract provided.

The International Criminal Court: Promise And Politics, Makau Wa Mutua

Journal Articles

No abstract provided.

Penal Incapacitation: A Situationist Critique, Guyora Binder, Ben Notterman

Journal Articles

Incapacitation of offenders has been an influential goal of criminal justice policy during the era of mass incarceration. The Supreme Court’s Eighth Amendment Jurisprudence has accepted incapacitation alone as a justifying purpose for recidivist sentencing enhancements. Yet recent Eighth Amendment decisions have required that severe sentences of incarceration be justified by reference to all purposes of punishment cumulatively, and have tested claims of incapacitative benefits against empirical evidence. This Article critiques penal incapacitation as both theoretically and empirically flawed. Incapacitation theory underestimates situational factors contributing to crime, over-attributes dangerousness to individuals, and fails to account for crime committed in prison. …

Missouri*@!!?*@! - Too Slow, Mae Quinn

Journal Articles

When asked to share my thoughts at this symposium about contemporary human rights issues in domestic criminal law—and how they manifest in St. Louis, Missouri in particular—I could not help but think of these words. Nina Simone, the brilliant vocal artist and civil rights activist, wrote these lyrics over fifty years ago and then bravely and controversially sang them for a mostly-white audience at New York City’s Carnegie Hall following the 1963 shooting death of Medgar Evers.2 Evers was a military veteran who turned civil rights activist and organizer for the National Association for the Advancement of Colored People (“NAACP”) …