Law Commons^™

Integrating Evidence-Based Practices Into Judicial Sentencing In The Wake Of Realignment’S Split Sentencing, Camille Frausto

Golden Gate University Law Review

Part I of this comment discusses the Supreme Court cases that led to the passage of the Realignment Act, along with a review of some of the major reform changes. Part I also highlights the gaps in creating a fair and consistent process across counties for managing the effects of Realignment. Part II discusses split sentencing and some of the issues it was designed to address as well as investigating how judges have reacted to and used split sentencing. Part III introduces the RNR (Risk Needs Responsivity) model of risk assessments and argues why it should be a mandatory aspect …

Lack Of “Purposefulness” & “Flagrancy” Or Simply Turning A Blind Eye To The Current State Of Affairs?: The Need For Statistical Data, Renei Caballes

Golden Gate University Law Review

This Comment argues that the Court misapplied the attenuation doctrine in Strieff, specifically in its application and interpretation of the language “purposeful and flagrant” and explores the possible implications of this decision. First, Section I explains the Fourth Amendment and the basic principles of law regarding searches and seizures, including the exclusionary rule and attenuation doctrine. Then, Section II examines the circuit court split prior to Utah v. Strieff and how each circuit interpreted the language “purposeful and flagrant.” Finally, Section III analyzes the issues with the Supreme Court’s interpretation of “purposeful and flagrant” in Utah v. Strieff and …

Nordstrom V. Ryan: Inmate’S Legal Correspondence Between His Or Her Attorney Is Still Constitutionally Protected, Christina Ontiveros

Golden Gate University Law Review

Prison administrations have been given much deference as to the limitations of prisoners’ rights. Still, even though the courts have shown regard to the prison administration, they have also recognized that there are two important interests at play: those of the prison administration and that of the prisoners’ constitutional rights. Because there are two important interests at play when an issue arises as to a prison’s regulation and its effect on a prisoner’s constitutional right, the courts turn to the Turner standard to determine the regulation’s constitutionality. Recently, the Ninth Circuit used this standard in Nordstrom v. Ryan to determine …

California’S “Yes Means Yes” Standard: A Starting Point For College Sexual Assault Policy Reform, Elizabeth Youngberg

Golden Gate University Law Review

Section I will discuss the background on colleges and their responsibility to address sexual misconduct on their campuses. This begins with a discussion regarding the relationship colleges share with their students and the government. Next, the background will discuss the federal laws that govern colleges and how they are expected to address campus sexual misconduct, including the Clery Act, Title IX as interpreted and defined by the Dear Colleague Letter of 2011, the Campus SaVE Act, and the Violence Against Women Reauthorization Act of 2013. Finally, this section concludes by reviewing California laws addressing campus sexual misconduct, including the California …

Jones V. Davis And The Critical Issue Of Time In California’S Capital Punishment System, Heather Varanini

Golden Gate University Law Review

This Note argues that the Ninth Circuit should have affirmed the district court’s holding, thus invalidating California’s capital punishment system for three main reasons. First, citizens are losing confidence in the death penalty, which undermines its deterrent effect. Second, capital punishment is a critical issue for the State, and Californians and death row inmates alike must look to the judiciary for relief. Third, the Ninth Circuit avoided the constitutional issue of California’s capital punishment system by relying on Teague v. Lane. In doing so, the court deepened the problems the Defendant and the district court sought to alleviate.

How Reasonable Are Reasonable Efforts For The Children Of Incarcerated Parents?, Courtney Serrato

Golden Gate University Law Review

This article will discuss the development of the laws concerning children with incarcerated parents. Ultimately, the goal is to encourage states like California to (1) expand the law regarding reasonable efforts even further, (2) encourage California prisons to take into consideration exceptions for children and incarcerated parents in implementing prison policies, and (3) provide other states with a model for proposing new laws that can be put into practice. The background of this article will explain the federal implementation of The Adoption and Safe Families Act (ASFA) and the necessary changes California made to state law after the enactment of …

Paved With Good Intentions: Title Ix Campus Sexual Assault Proceedings And The Creation Of Admissible Victim Statements, Sara F. Dudley

Golden Gate University Law Review

This Comment argues that campuses should, in the course of their Title IX proceedings, ensure that anyone who takes a potentially admissible statement from a survivor has received trauma-informed interview training. Trauma-informed interviewing acknowledges the physiological effect of trauma on survivors, the impact that it can have on their ability to recall facts and details, and the limits and possibilities of obtaining information from such witnesses. In addition, campuses should limit the number of individuals who take statements from survivors and record the victim’s statements. These improvements will create statements of higher evidentiary quality. It will also mitigate the emotional …

Police Highspeed Pursuits: Giving Police The Authority To Intervene Before The Public Is Harmed, Kevin Ballard

GGU Law Review Blog

Police Pursuits. The idea brings to mind thoughts of bank robbers fleeing from the police after committing a daring heist, only to be pursued by inept cops that wind up crashing into each other as the robbers drive away in perfect Hollywood fashion. However, police pursuits are rarely as glamorous and thrilling. In reality, they are terrifying and dangerous. In fact, according to the National Highway Traffic Safety Administration (NHTSA) more than 5,000 bystanders or passengers have been killed in police pursuits since 1979.

End The Death Penalty, Rachel A. Van Cleave

Publications

No abstract provided.

De-Categorizing Child Abuse - Equally Devastating Acts Require Equally Solicitous Statutes Of Limitations, Rosemary La Puma

Publications

News reports of childhood sexual abuse by Catholic priests initially shocked and subsequently angered the public. Emboldened by the public's reaction toward sexual abusers, survivors attempted to confront their abusers in civil court. Jurisdictions adjudicated these claims if they were brought within two years of reaching the age of majority. Yet, survivors often did not recognize the damage done to them until several years after they reached the age of majority. And by the time they did, the two-year statute of limitations had passed. In the late 1980s and early 1990s, survivors lobbied state legislatures to extend. the time within …

The Best Public Defenders Are Anarchists, Rachel A. Van Cleave, Peter Keane

Publications

After decades in criminal defense and in legal education, Golden Gate University School of Law Dean Emeritus Peter Keane is retiring. In addition to serving as dean and leading the San Francisco Public Defender's Office, Keane has also taken on leadership roles with the State Bar and with numerous tasks forces and commissions. He sat down recently with Rachel Van Cleave, the current dean of GGU Law, to reflect on his career.

United States V. Fidel Castro-Verdugo: Unlawfully Sentenced Defendant Is Procedurally Barred From Relief, E. Rose London

Golden Gate University Law Review

In United States v. Fidel Castro-Verdugo, the Ninth Circuit held that the court lacks the jurisdiction to correct an underlying unlawful sentence imposed by the district court in the context of a probation revocation appeal. Despite clear error on the part of the sentencing judge, Defendant-Appellant (Defendant) did not timely file a petition for a writ of habeas corpus; therefore, no remedy was available to him. The dissenting opinion asserted that the court did have jurisdiction to correct the error because Defendant appealed from a later sentence erroneously based on the underlying unlawful sentence. Noting that it is the …

United States V. Rodriguez: Fresno Laser Pointer, A “Knucklehead” But Not A “Bin Laden”, Rosalyn A. Jamili

Golden Gate University Law Review

In United States v. Rodriguez, the Ninth Circuit overturned a harsh conviction sentencing Sergio Patrick Rodriguez to five years in prison for aiming a laser pointer at a Fresno Police helicopter, in violation of 18 U.S.C. § 39A, and an additional fourteen years in prison for attempting to interfere with its operation, in violation of 18 U.S.C. §§ 32(a)(5) and (8). The panel reversed the conviction, finding that Rodriguez did not act with reckless disregard for the safety of human life by shining the laser pointer at the helicopter, and remanded his conviction for aiming the pointer itself for resentencing.

Threaten Sentencing Enhancement, Coerce Plea, (Wash, Rinse,) Repeat: A Cause Of Wrongful Conviction By Guilty Plea, Wes R. Porter

Publications

Our American criminal justice system is too often described as broken. It was not a clean break in a single, isolated location. Instead, our criminal justice system suffers from many, many little nicks, bumps, and bruises at the hands of its keepers. The evolution of sentencing enhancements within our criminal justice system represents the latest nagging, reoccurring injury. In the ultimate Trojan horse to criminal defendants, the Supreme Court sought to protect the individual rights of the accused with its recent decisions on sentencing enhancements. But at the hands of lawmakers, the judiciary, and prosecutors, criminal defendants suffer more. Our …

“Yes Means Yes” Bill Fails To Adequately Address Link Between Alcohol And Sexual Assault, Danielle Cearley

GGU Law Review Blog

Much talk has surrounded California’s “Yes Means Yes” bill. SB 967 has been hailed a major shift in the way colleges will approach sexual assault by instituting an affirmative consent standard. Authored by Senator Kevin de Leon, SB 967 was signed by Governor Jerry Brown on September 28, 2014. While the “Yes Means Yes” bill did not go unchallenged by Republicans, it was unanimously put forward. Despite the unanimity, many have criticized the bill. Critiques have questioned a number of aspects of the bill, first and foremost it has been labeled as ambiguous, and many critics have alluded to possible …

Beyond Ferguson: The Uncertain Future Of The Grand Jury, Golden Gate University School Of Law

Press Releases

San Francisco, CA (March 24, 2015) – Golden Gate University School of Law (GGU Law) will host an expert panel to explore the use of the criminal grand jury, the legal mechanism generating much controversy following the decision not to indict a Ferguson, MO police officer in November, 2014. This free lecture will briefly explain the history of the criminal grand jury, followed by a panel of legal powerhouses who will offer their in-depth analyses of the criminal grand jury’s use and its future.

Book Review: Carol Haber, The Trials Of Laura Fair: Sex, Murder, And Insanity In The Victorian West, Benedetta Faedi Duramy

Publications

During the nineteenth century, the inquisitorial justice system, in which the investigation was typically overseen by a prosecutor or an examining magistrate, and the conduct of the trial was largely in the hands of the court, was replaced by the adversarial justice system. In the adversarial model, both the prosecutor and the defense were responsible for gathering evidence and presenting a narrative of the crime during the trial. Therefore, the courtroom became a sentimental theater in which opposing counsels recreated for the jury the story of the defendant and the events leading to the crime. The trial, therefore, represented the …

Sex Offender Residency Restrictions Serve No Purpose, Stephen Butts

GGU Law Review Blog

No abstract provided.

Lawmaker’S Cookbook: A Recipe For “Tough-On-Crime” Laws, Stephen Butts

GGU Law Review Blog

Many “tough-on-crime” laws have been enacted over the past fifty years. These laws impose harsh sentences and severely restrict offenders’ civil liberties under the guise of preventing crime. Sex offender laws, Three Strikes laws, zero tolerance laws, and mandatory sentences are examples. “Tough-on-crime” laws are economically unfeasible, ineffective, and unjust; yet their creation continues.Chelsea’s law, the newest “tough-on-crime” law, was enacted just over three years ago.

Blame Congress, Not Prosecutors, For The Absurdity Of Mandatory Minimums, Wes R. Porter

Publications

Contrary to public perception, prosecutors do not "coerce" or "threaten" otherwise innocent people to plead guilty using mandatory minimum sentences. "Mandatory minimums," as they are called, are minimum terms of imprisonment for specific offenses imposed by statute instead of a judge. Judge John Gleeson of the U.S. District Court for the Eastern District of New York joined the chorus of critics in an October 2013 court statement, when he said that "[p]rosecutors routinely threaten ultra-harsh, enhanced mandatory sentences that no one - not even the prosecutors themselves - thinks are appropriate." Of course, some federal prosecutors do act badly - …

From Mountains To Molehills: A Comparative Analysis Of Drug Policy, Brian A. Ford

Annual Survey of International & Comparative Law

This paper examines the debate surrounding the trend of global movements away from prohibition and towards a harms reduction approach to drug policy. This paper reviews the prohibitionist model that is, by and large, the global status quo of how countries deal with drugs. Under the prohibitionist approach, governments criminally ban the production, trafficking, sale, possession, and use of drugs in an effort to directly combat the harms associated with drugs. Section I of this paper presents the prohibitionist approach as the international status quo and examines the effects and failures of that approach. Section II examines a variety of …

Talk Is Cheap, But Texting While Driving Shouldn’T Be, Kristina Maalouf

GGU Law Review Blog

No abstract provided.

Sex Trafficking In Massage Parlors: Working Out The Knots In The San Francisco Health Code, Joanne Badua

GGU Law Review Blog

No abstract provided.

Putting Teeth Into A.B. 109: Why California’S Historic Public Safety Realignment Act Should Require Reentry Programming, Kathleen Nye Flynn

Golden Gate University Law Review

Part I of this Comment provides a history of probation reform policies in California and an overview of realignment and its preceding litigation, with a focus on components that relate to rehabilitation in post-release. Part II explores how Plata laid the groundwork for California’s current focus on reform and demonstrates how realignment hinges on changing the role of probation, slowing recidivism, and improving rehabilitation opportunities. Part III argues that the State should provide mandatory guidelines for county rehabilitation efforts as part of realignment. Finally, Part IV recommends statutory language that would make rehabilitative programming for probationers a mandatory component of …

An Argument For Child Pornography Victim Restitution In The Ninth Circuit: United States V. Kennedy, Amber Pruitt

Golden Gate University Law Review

This Note argues that the Ninth Circuit erred in United States v. Kennedy by vacating restitution damages for the victims to be paid by the possessor of their images, because denying victims such restitution offends traditional understandings of the limits of proximate cause and the legislative intent behind § 2259.44 There are alternative legal tests currently used by other circuits that establish proximate cause in child-pornography-possessor cases that the Ninth Circuit should have applied in Kennedy to ensure that those responsible for harming children would not escape due liability.

Part I of this Note explains why the possession of child …

Federal Judges Need Competing Information To Rival The Misleading Guidelines At Sentencing, Wes R. Porter

Publications

Federal district judges are stuck in a bad marriage with the U.S. Sentencing Guidelines after Booker v. Unittd States. While most of the sentencing debate centers around the struggle over judicial discretion and power to control sentencing outcomes, little attention is given to how poorly we inform the sentencing court's discretion. The information provided to the court at sentencing is lacking and outdated. The Booker Court freed district judges from the "mandatory guideline era" (1988-2005), but also required that district judges continue to calculate, "consult," and explain variances from the applicable guideline range. A sentencing court needs better, competing …

Rational Criminal Justice, Andy Brunner-Brown

GGU Law Review Blog

No abstract provided.

Mediating Disputes Arising Out Of Troubled Companies - Do It Sooner Rather Than Later, The Hon. Randall J. Newsome

Golden Gate University Law Review

Over the last several years, there has been much academic debate on the subject of “vanishing trials”—whether the settlement rate in bankruptcy and other courts is accelerating, and whether that is a healthy trend for our justice system. A more interesting question is why disputes in chapter 11 cases are not resolved sooner. Why does it take so much time and so much money for parties to settle their differences and arrive at a consensual chapter 11 plan?

Cite as 42 Golden Gate U. L. Rev. 661 (2012).

Obtaining The Release Of Grand Jury Evidence In Ponzi Cases, The Hon. Steven Rhodes

Golden Gate University Law Review

Evidence that law enforcement authorities obtain through the grand jury process is generally secret. Nevertheless, case law can provide a powerful basis for a trustee, a receiver or any party in a Ponzi case to obtain evidence that the government has in its possession as a result of its investigation of a Ponzi scheme. This Article considers the extent to which parties in a Ponzi scheme insolvency proceeding might be able to obtain evidence presented in a criminal grand jury proceeding relating to the Ponzi scheme.

Cite as 42 Golden Gate U. L. Rev.657 (2012).

Overcoming Administrative, Procedural And Evidentiary Hurdles In Ponzi Scheme Litigation, Sharon Z. Weiss, Natalie B. Daghbandan

Golden Gate University Law Review

The unfortunate reality that comes with a Ponzi scheme case in bankruptcy is a mass of deceived unsecured creditors clamoring for their money back, and few, if any, present assets within the bankruptcy estate with which to pay them. The sheer size of most Ponzi schemes cases necessarily presents unique evidentiary, procedural and administrative challenges to professionals seeking to sort out the failed Ponzi enterprise. Ponzi scheme cases are riddled with litigation, which generally falls into four categories: (1) litigation against the Ponzi scheme operator(s), (2) litigation against parties who enabled the scheme to continue (such as professionals), (3) litigation …