Law Commons^™

Taking Strickland Claims Seriously, Stephen F. Smith

Stephen F. Smith

Every criminal defendant is promised the right to the effective assistance of counsel. Whether at trial or first appeal of right, due process is violated when attorney negligence undermines the fairness and reliability of judicial proceedings. That, at least, is the black-letter law articulated in Strickland v. Washington, 466 U.S. 688 (1984). In practice, however, the right to effective representation has meant surprisingly little over the last two decades. Under the standards that emerged from Strickland, scores of defendants have received prison or death sentences by virtue of serious unprofessional errors committed by their attorneys.

This Essay canvasses a line …

Correcting A Fatal Lottery: A Proposal To Apply The Civil Discrimination Standards To The Death Penalty, Joseph Thomas

Joseph Thomas

Claims of discrimination are treated differently in the death penalty context. Discrimination in employment, housing, civil rights and jury venire all use a burden-shifting framework with the preponderance of the evidence as the standard. Discrimination that occurs in death penalty proceedings is the exception to the rule -- the framework offers less protections; there is only one phase of argumentation, with a heightened evidentiary standard of “exceptionally clear proof.” With disparate levels of protections against discrimination, the standard and framework for adjudicating claims of discrimination in the death penalty is unconstitutional.

Death is different as a punishment. But does discrimination …

Correcting A Fatal Lottery: A Proposal To Apply The Civil Discrimination Standards To The Death Penalty, Joseph Thomas

Joseph Thomas

Claims of discrimination are treated differently in the death penalty context. Discrimination in employment, housing, civil rights and jury venire all use a burden-shifting framework with the preponderance of the evidence as the standard. Discrimination that occurs in death penalty proceedings is the exception to the rule -- the framework offers less protections; there is only one phase of argumentation, with a heightened evidentiary standard of “exceptionally clear proof.” With disparate levels of protections against discrimination, the standard and framework for adjudicating claims of discrimination in the death penalty is unconstitutional.

Death is different as a punishment. But does discrimination …

Pre-Crime Restraints: The Explosion Of Targeted, Non-Custodial Prevention, Jennifer Daskal

Jennifer Daskal

This Article exposes the ways in which non-custodial, pre-crime restraints have proliferated over the past decade, focusing in particular on three notable examples – terrorism-related financial sanctions, the No Fly List, and the array of residential, employment, and related restrictions imposed on sex offenders. Because such restraints do not involve physical incapacitation, they are rarely deemed to infringe core liberty interests. Because they are preventive, not punitive, none of the criminal law procedural protections apply. They have exploded largely unchecked – subject to little more than bare rationality review and negligible procedural protections – and without any coherent theory as …

Johnson V. Superior Court - The Future Of The Grand Jury Indictment In California , Suzanne Haigh

Pepperdine Law Review

No abstract provided.

Parole Revocation Procedures In Kentucky, Harry J. Rothgerber Jr., J. W. Deese

Journal of the National Association of Administrative Law Judiciary

No abstract provided.

The Right To Counsel For Indians Accused Of Crime: A Tribal And Congressional Imperative, Barbara L. Creel

Michigan Journal of Race and Law

Native American Indians charged in tribal court criminal proceedings are not entitled to court appointed defense counsel. Under well-settled principles of tribal sovereignty, Indian tribes are not bound by Fifth Amendment due process guarantees or Sixth Amendment right to counsel. Instead, they are bound by the procedural protections established by Congress in the Indian Civil Rights Act of 1968. Under the Indian Civil Rights Act (ICRA), Indian defendants have the right to counsel at their own expense. This Article excavates the historical background of the lack of counsel in the tribal court arena and exposes the myriad problems that it …

The Sanctity Of The Attorney-Client Relationship – Undermined By The Federal Interpretation Of The Right To Counsel - People V. Borukhova, Tara Laterza

Touro Law Review

No abstract provided.

Mistreating A Symptom: The Legitimizing Of Mandatory, Indefinite Commitment Of Insanity Acquittees - Jones V. United States, Paul S. Avilla

Pepperdine Law Review

At the end of the 1982 term, in Jones v. United States, the United States Supreme Court upheld a District of Columbia statute requiring the automatic and indefinite commitment of persons acquitted by reason of insanity. While under the D.C. statute the acquittee is periodically given the opportunity to gain release, the practice of involuntarily confining someone who has been acquitted raises serious due process and equal protection issues. This note examines the Court's analysis of these issues, focusing on a comparison of the elements necessary for an insanity defense with the showing required by the due process clause for …

The Constitutionality Of The Federal Sentencing Reform Act After Mistretta V. United States, Charles R. Eskridge Iii

Pepperdine Law Review

No abstract provided.

Amicus Brief: State V. Glover (Maine Supreme Judicial Court), Adam Lamparello, Charles Maclean

Adam Lamparello

When law enforcement seeks to obtain a warrantless, pre-arrest DNA sample from an individual, that individual has the right to say “No.” If silence is to become a “badge of guilt,” then the right to silence—under the United States and Maine Constitutions—might become a thing of the past. Allowing jurors to infer consciousness of guilt from a pre-arrest DNA sample violates the Fourth Amendment to the United States and Maine Constitutions.

Brady, Arkansas Rule 17.1, And Disclosure Of Scientific Evidence And Expert Opinion, J. Thomas Sullivan

University of Arkansas at Little Rock Law Review

The United States Constitution as well as state procedural rules require prosecutorial authorities to disclose evidence to the defense as a means for ensuring fairness in the prosecution of individuals charged with criminal offenses. When prosecutorial authorities fail to disclose evidence as required, the integrity of the criminal justice system is threatened and the defense is unable to adequately prepare for trial. This threat is illustrated and magnified by the substantiation of prosecutorial misconduct claims in high profile trials where prosecutors have been unable to resist the temptation not to disclose evidence that could damage the prosecution's case, or, where …

Do Sexually Violent Predator Laws Violate Double Jeopardy Or Substantive Due Process? An Empirical Inquiry, Tamara Rice Lave, Justin Mccrary

Articles

No abstract provided.

Due Process In Islamic Criminal Law, Sadiq Reza

Articles & Chapters

Rules and principles of due process in criminal law—how to, and how not to, investigate crime and criminal suspects, prosecute the accused, adjudicate criminal cases, and punish the convicted—appear in the traditional sources of Islamic law: the Quran, the Sunna, and classical jurisprudence. But few of these rules and principles are followed in the modern-day practice of Islamic criminal law. Rather, states that claim to practice Islamic criminal law today mostly follow laws and practices of criminal procedure that were adopted from European nations in the twentieth century, without reference to the constraints and protections of Islamic law itself. To …

Due Process In Islamic Criminal Law, Sadiq Reza

Faculty Scholarship

Rules and principles of due process in criminal law--how to, and how not to, investigate crime and criminal suspects, prosecute the accused, adjudicate criminal cases, and punish the convicted--appear in the traditional sources of Islamic law: the Quran, the Sunna, and classical jurisprudence. But few of these rules and principles are followed in the modern-day practice of Islamic criminal law. Rather, states that claim to practice Islamic criminal law today mostly follow laws and practices of criminal procedure that were adopted from European nations in the twentieth century, without reference to the constraints and protections of Islamic law itself. To …