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Full-Text Articles in Law
Taking Corrigibility Seriously, Dora Klein
Taking Corrigibility Seriously, Dora Klein
Faculty Articles
This article argues that the Supreme Court's creation of a category of "irreparably corrupt" juveniles is not only an epistemological mistake but also a tactical mistake which has undermined the Court's express desire that only in the "rarest" of cases will juveniles be sentenced to life in prison without the possibility of parole.
Promise Amid Peril: Prea's Efforts To Regulate An End To Prison Rape, Brenda V. Smith
Promise Amid Peril: Prea's Efforts To Regulate An End To Prison Rape, Brenda V. Smith
Project on Addressing Prison Rape - Articles
This Article discusses the modest aspirations of the Prison Rape Elimination Act (“PREA”) that passed unanimously in the United States Congress in 2003. The Article posits that PREA created opportunities for holding correctional authorities accountable by creating a baseline for safety and setting more transparent expectations for agencies’ practices for protecting prisoners from sexual abuse. Additionally, the Article posits that PREA enhanced the evolving standards of decency for the Eighth Amendment and articulated clear expectations of correctional authorities to provide sexual safety for people in custody.
Evolving Standards Of Domination: Abandoning A Flawed Legal Standard And Approaching A New Era In Penal Reform, Spearit
Articles
This Article critiques the evolving standards of decency doctrine as a form of Social Darwinism. It argues that evolving standards of decency provided a system of review that was tailor-made for Civil Rights opponents to scale back racial progress. Although as a doctrinal matter, evolving standards sought to tie punishment practices to social mores, prison sentencing became subject to political agendas that determined the course of punishment more than the benevolence of a maturing society. Indeed, rather than the fierce competition that is supposed to guide social development, the criminal justice system was consciously deployed as a means of social …
Plata V. Brown And Realignment: Jails, Prisons, Courts, And Politics, Margo Schlanger
Plata V. Brown And Realignment: Jails, Prisons, Courts, And Politics, Margo Schlanger
Articles
The year 2011 marked an important milestone in American institutional reform litigation. That year, a bare majority of the U.S. Supreme Court, in an opinion in Brown v. Plata by Justice Anthony Kennedy, affirmed a district court order requiring California to remedy its longstanding constitutional deficits in prison medical and mental health care by reducing prison crowding. Not since 1978 had the Court ratified a lower court's crowding-related order in a jail or prison case, and the order before the Court in 2011 was fairly aggressive; theoretically, it could have (although this was never a real prospect) induced the release …
Asking The First Question: Reframing Bivens After Minneci, Alexander A. Reinert, Lumen N. Mulligan
Asking The First Question: Reframing Bivens After Minneci, Alexander A. Reinert, Lumen N. Mulligan
Faculty Works
In Minneci v. Pollard, decided in January 2012, the Supreme Court refused to recognize a Bivens v. Six Unknown Federal Narcotics Agents suit against employees of a privately run federal prison because state tort law provided an alternative remedy, thereby adding a federalism twist to what had been strictly a separation-of-powers debate. In this Article, we show why this new state-law focus is misguided. We first trace the Court’s prior alternative-remedies-to-Bivens holdings, illustrating that this history is one narrowly focused on separation of powers at the federal level. Minneci’s break with this tradition raises several concerns. On a doctrinal level, …
A Crisis In Federal Habeas Law, Eve Brensike Primus
A Crisis In Federal Habeas Law, Eve Brensike Primus
Reviews
Everyone recognizes that federal habeas doctrine is a mess. Despite repeated calls for reform, federal judges continue to waste countless hours reviewing habeas petitions only to dismiss the vast majority of them on procedural grounds. Broad change is necessary, but to be effective, such change must be animated by an overarching theory that explains when federal courts should exercise habeas jurisdiction. In Habeas for the Twenty-First Century: Uses, Abuses, and the Future of the Great Writ, Professors Nancy King and Joseph Hoffmann offer such a theory. Drawing on history, current practice, and empirical data, King and Hoffmann find unifying themes …
Defending Juveniles Facing Life Without Parole In Michigan, Kimberly A. Thomas
Defending Juveniles Facing Life Without Parole In Michigan, Kimberly A. Thomas
Articles
In Graham v. Florida, the United State Supreme Court held that life without parole could not be imposed on a juvenile offender for a non-homicide crime. This article discusses the challenges, under the Eighth Amendment and the Michigan Constitution, to the sentence of life without parole imposed on someone 17 years old or less.
But Can It Be Fixed? A Look At Constitutional Challenges To Lethal Injection Executions, Ellen Kreitzberg, David Richter
But Can It Be Fixed? A Look At Constitutional Challenges To Lethal Injection Executions, Ellen Kreitzberg, David Richter
Faculty Publications
This article argues that California's Procedure 770 as currently implemented is unconstitutional. Judge Fogel, after an exhaustive review of evidence from all parties,agrees. Although Judge Fogel believes that the lethal injection system, while broken "can be fixed," we argue that lethal injection, as a method of execution, is always unconstitutional because the procedures employed in its administration can never ensure against unnecessary risk of pain to the inmate. We also argue that the California legislature must step in to publicly review lethal injection executions and to investigate the conduct of the California Department of Corrections and Rehabilitation (CDCR) in the …
Beyond The Hero Judge: Institutional Reform Litigation As Litigation, Margo Schlanger
Beyond The Hero Judge: Institutional Reform Litigation As Litigation, Margo Schlanger
Reviews
In 1955, in its second decision in Brown v. Board of Education, the Supreme Court suggested that federal courts might be called upon to engage in long-term oversight of once-segregated schools. Through the 1960s, southern resistance pushed federal district and appellate judges to turn that possibility into a reality. The impact of this saga on litigation practice extended beyond school desegregation, and even beyond the struggle for African-American equality; through implementation of Brown, the nation’s litigants, lawyers, and judges grew accustomed both to issuance of permanent injunctions against state and local public institutions, and to extended court oversight of compliance. …
Punitive Conditions Of Prison Confinement: An Analysis Of Pugh V. Locke And Federal Court Supervision Of State Penal Administration Under The Eighth Amendment, Ira P. Robbins, Michael B. Buser
Punitive Conditions Of Prison Confinement: An Analysis Of Pugh V. Locke And Federal Court Supervision Of State Penal Administration Under The Eighth Amendment, Ira P. Robbins, Michael B. Buser
Articles in Law Reviews & Other Academic Journals
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