Law Commons^™

The Original Meaning Of "Unusual": The Eighth Amendment As A Bar To Cruel Innovation, John F. Stinneford

John F. Stinneford

In recent years, both legal scholars and the American public have become aware that something is not quite right with the Supreme Court's Eighth Amendment jurisprudence. Legal commentators from across the spectrum have described the Court's treatment of the Cruel and Unusual Punishments Clause as "embarrassing," "ineffectual and incoherent," a "mess," and a "train wreck." The framers of the Bill of Rights understood the word "unusual" to mean "contrary to long usage." Recognition of the word's original meaning will precisely invert the "evolving standards of decency" test and ask the Court to compare challenged punishments with the longstanding principles and …

Youth Matters: Miller V. Alabama And The Future Of Juvenile Sentencing, John F. Stinneford

John F. Stinneford

In the Supreme Court's latest Eighth Amendment decision, Miller v. Alabama, the Court held that statutes authorizing mandatory sentences of life in prison with no possibility of parole are unconstitutional as applied to offenders who were under eighteen when they committed their crimes. This short essay examines several themes presented in Miller, including the constitutional significance of youth and science, the legitimacy of mandatory life sentences and juvenile transfer statutes, and the conflict between “evolving standards of decency” and the Supreme Court’s “independent judgment.” This essay also introduces important articles by Richard Frase, Carol Steiker and Jordan Steiker, Franklin Zimring …

The Illusory Eighth Amendment, John F. Stinneford

John F. Stinneford

Although there is no obvious doctrinal connection between the Supreme Court’s Miranda jurisprudence and its Eighth Amendment excessive punishments jurisprudence, the two are deeply connected at the level of methodology. In both areas, the Supreme Court has been criticized for creating “prophylactic” rules that invalidate government actions because they create a mere risk of constitutional violation. In reality, however, both sets of rules deny constitutional protection to a far greater number of individuals with plausible claims of unconstitutional treatment than they protect. This dysfunctional combination of over- and underprotection arises from the Supreme Court’s use of implementation rules as a …

Punishment Without Culpability, John F. Stinneford

John F. Stinneford

For more than half a century, academic commentators have criticized the Supreme Court for failing to articulate a substantive constitutional conception of criminal law. Although the Court enforces various procedural protections that the Constitution provides for criminal defendants, it has left the question of what a crime is purely to the discretion of the legislature. This failure has permitted legislatures to evade the Constitution’s procedural protections by reclassifying crimes as civil causes of action, eliminating key elements (such as mens rea) or reclassifying them as defenses or sentencing factors, and authorizing severe punishments for crimes traditionally considered relatively minor. The …

Incapacitation Through Maiming: Chemical Castration, The Eighth Amendment, And The Denial Of Human Dignity, John F. Stinneford

John F. Stinneford

This year marks the tenth anniversary of California's enactment of the nation's first chemical castration law. This law requires certain sex offenders to receive, as part of their punishment, long-term pharmacological treatment involving massive doses of a synthetic female hormone called medroxyprogesterone acetate (MPA). MPA treatment is described as chemical castration because it mimics the effect of surgical castration by eliminating almost all testosterone from the offender's system. The intended effect of MPA treatment is to alter brain and body function by reducing the brain's exposure to testosterone, thus depriving offenders of most (or all) capacity to experience sexual desire …

School Surveillance And The Fourth Amendment, Jason P. Nance

Jason P. Nance

In the aftermath of several highly-publicized incidents of school violence, public school officials have increasingly turned to intense surveillance methods to promote school safety. The current jurisprudence interpreting the Fourth Amendment generally permits school officials to employ a variety of strict measures, separately or in conjunction, even when their use creates a prison-like environment for students. Yet, not all schools rely on such strict measures. Recent empirical evidence suggests that low-income and minority students are much more likely to experience intense security conditions in their school than other students, even after taking into account factors such as neighborhood crime, school …

The Road Most Travel: Is The Executive’S Growing Preeminence Making America More Like The Authoritarian Regimes It Fights So Hard Against?, Ryan T. Williams

Ryan T. Williams

Punição E Constituição: Cinco Princípios Para O Futuro Da Democracia Brasileira (Punishment And The Constitution: Five Principles For The Future Of Brazilian Democracy), Paulo Barrozo

Paulo Barrozo

Portuguese Abstract: Publicado nos Anais da XXII Conferência da Ordem dos Advogados do Brasil realizada em 2014, este ensaio elabora cinco princípios para orientar a reforma do sistema penal brasileiro visando traze-lo ao centro da arquitetura constitucional de um país comprometido com os valores do auto-governo democrático e dos direitos individuais. English Abstract: Published in the annals of the of the Brazilian Bar Association XXII annual conference in 2014, this essay offers five principles to guide reform of the Brazilian criminal justice system in order to bring it to the center of the constitutional framework of a country committed to …

The Constitutionality Of The Criminal Organisation Acts In Australia: Where To Now In 2014?, Bradley J. Young

Bradley J Young JD PhD

Efforts to disrupt and limit criminal organisations involved in serious criminal activity as well as directly control members and their associates were introduced in Queensland with the Criminal Organisation Act 2009 (Qld). The purpose for this legislation and the debate over the head of power under which it operates has received much attention and has been again examined this year in the high court case Pompano (2013). The active and applicable laws across a number of states in Australia that can be categorised as control order legislation have proven themselves problematic and still have broader societal application beyond bikie gangs. …

Infusing The Meaning Of “Cruel And Unusual” Through The Digital Public Sphere: How The Internet Can Change The Debate On The Morality Of Capital Punishment, Adam A. Marshall

Adam A Marshall

In this paper, I suggest new strategies that abolitionists should adopt in the debate over the morality of the death penalty. As the Eighth Amendment “draw[s] its meaning from the evolving standards of decency that mark the progress of a maturing society”, advocates for abolishing the death penalty should develop strategies based on the moral theories of Adam Smith to leverage the power of the internet and ensure all citizens feel the effects of the death penalty in order to stimulate debate over its morality. By examining these concepts through the case of Troy Davis, we can see how the …

The Privilege Against Self-Incrimination In Bankruptcy And The Plight Of The Debtor, Timothy R. Tarvin

Timothy R Tarvin

The "Not A Search" Game, John F. Stinneford

John F. Stinneford

No abstract provided.

The Immigration Detention Risk Assessment, Mark Noferi, Robert Koulish

Mark L Noferi

In early 2013, U.S. Immigration and Customs Enforcement (“ICE”) deployed nationwide a new automated risk assessment tool to help determine whether to detain or release noncitizens pending their deportation proceedings. Adapted from similar evidence-based criminal justice reforms that have reduced pretrial detention, ICE’s initiative now represents the largest pre-hearing risk assessment experiment in U.S. history—potentially impacting over 400,000 individuals per year. However, to date little information has been released regarding the risk assessment algorithm, processes, and outcomes.

This article provides the first comprehensive examination of ICE’s risk assessment initiative, based on public access to ICE methodology and outcomes as a …