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Full-Text Articles in Law
Dangerous Diagnoses, Risky Assumptions, And The Failed Experiment Of "Sexually Violent Predator" Commitment, Deirdre M. Smith
Dangerous Diagnoses, Risky Assumptions, And The Failed Experiment Of "Sexually Violent Predator" Commitment, Deirdre M. Smith
Faculty Publications
In its 1997 opinion, Kansas v. Hendricks, the U.S. Supreme Court upheld a law that reflected a new model of civil commitment. The targets of this new commitment law were dubbed “Sexually Violent Predators” (SVPs), and the Court upheld indefinite detention of these individuals on the assumption that there is a psychiatrically distinct class of individuals who, unlike typical recidivists, have a mental condition that impairs their ability to refrain from violent sexual behavior. And, more specifically, the Court assumed that the justice system could reliably identify the true “predators,” those for whom this unusual and extraordinary deprivation of liberty …
Notice(Ing) Ex-Offenders: A Case Study Of The Manifest Injustice Of Passively Violating A "Felon-In-Possession" Statute, S. David Mitchell
Notice(Ing) Ex-Offenders: A Case Study Of The Manifest Injustice Of Passively Violating A "Felon-In-Possession" Statute, S. David Mitchell
Faculty Publications
Changing a law and criminalizing formerly legal conduct without providing notice of the change and without providing a reasonable period of time for the offending individual to comply with the change not only violates due process but is also manifestly unjust, especially given the scope and breadth of the collateral consequences that attach upon a felony conviction, such as the loss of the right to vote, to serve on a jury, or to receive certain benefits. With the far-reaching impact of a felony conviction on all areas of an individual's life, the maxim that "ignorance of the law excuses no …
Systemic Barriers To Effective Assistance Of Counsel In Plea Bargaining, Rodney J. Uphoff, Peter A. Joy
Systemic Barriers To Effective Assistance Of Counsel In Plea Bargaining, Rodney J. Uphoff, Peter A. Joy
Faculty Publications
In a trio of recent cases, Padilla v. Kentucky, Missouri v. Frye, and Lafler v. Cooper, the U.S. Supreme Court has focused its attention on defense counsel's pivotal role during the plea bargaining process . At the same time that the Court has signaled its willingness to consider ineffective assistance of counsel claims at the plea stage, prosecutors are increasingly requiring defendants to sign waivers that include waiving all constitutional and procedural errors, even unknown ineffective assistance of counsel claims such as those that proved successful in Padilla and Frye. Had Jose Padilla and Galin Frye been forced to sign …
Prosecuting Those Bearing 'Greatest Responsibility': The Lessons Of The Special Court For Sierra Leone, Charles Chernor Jalloh
Prosecuting Those Bearing 'Greatest Responsibility': The Lessons Of The Special Court For Sierra Leone, Charles Chernor Jalloh
Faculty Publications
This Article examines the controversial article 1(1) of the Statute of the Special Court for Sierra Leone (SCSL) giving that tribunal the competence “to prosecute those who bear the greatest responsibility” for serious international and domestic crimes committed during the latter part of the notoriously brutal Sierra Leonean conflict. The debate that arose during the SCSL trials was whether this bare statement constituted a jurisdictional requirement that the prosecution must prove beyond a reasonable doubt or merely a type of guideline for the exercise of prosecutorial discretion. The judges of the court split on the issue. This paper is the …
Debacle: How The Supreme Court Has Mangled American Sentencing Law And How It Might Yet Be Mended, Frank O. Bowman Iii
Debacle: How The Supreme Court Has Mangled American Sentencing Law And How It Might Yet Be Mended, Frank O. Bowman Iii
Faculty Publications
This Article argues that the line of Supreme Court Sixth Amendment jury right cases that began with McMillan v. Pennsylvania in 1986, crescendoed in Blakely v. Washington and United States v. Booker in 2004-2005, and continued in 2009 in cases such as Oregon v. Ice, has been a colossal judicial failure. First, the Court has failed to provide a logically coherent, constitutionally based answer to the fundamental question of what limits the Constitution places on the roles played by the institutional actors in the criminal justice system. It failed to recognize that defining, adjudicating and punishing crimes implicates both the …
Ending Impunity The Case For War Crimes Trials In Liberia, Charles Chernor Jalloh, Alhagi Marong
Ending Impunity The Case For War Crimes Trials In Liberia, Charles Chernor Jalloh, Alhagi Marong
Faculty Publications
This paper argues that Liberia owes a duty under international law to investigate and prosecute the heinous crimes, including torture, rape and extra-judicial killings of innocent civilians, committed in that country by the various warring parties in the course of 14 years of brutal conflict. The authors evaluate the options for prosecution, starting with the possible use of Liberian courts. They argue that even if willing, the national courts are unable to render credible justice that protects the due process rights of the accused given the collapse of legal institutions and the paucity of financial, human and material resources in …
Function Over Formalism: A Provisional Theory Of The Constitutional Law Of Crime And Punishment, Frank O. Bowman Iii
Function Over Formalism: A Provisional Theory Of The Constitutional Law Of Crime And Punishment, Frank O. Bowman Iii
Faculty Publications
This Article is, in effect, the second half of the author's argument against the Supreme Court's interpretation of the Sixth Amendment in Blakely v. Washington. The first half appeared in "Train Wreck? Or Can the Federal Sentencing System Be Saved? A Plea for Rapid Reversal of Blakely v. Washington," 41 American Criminal Law Review 217 (2004), and made a pragmatic, consequentialist argument against the Blakely result. This Article takes the next step of providing an alternative constitutional model of criminal sentencing to that offered by Justice Scalia in Blakely. The model emphasizes that a good constitutional model should pay particular …