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Full-Text Articles in Law
Dignity, Deference, And Discrimination: An Analysis Of Religious Freedom In America’S Prisons, Elyse Slabaugh
Dignity, Deference, And Discrimination: An Analysis Of Religious Freedom In America’S Prisons, Elyse Slabaugh
BYU Law Review
The free exercise of religion often presents a complex reality in prison. Over the years, the standard of scrutiny for free exercise claims has not only been easily alterable but also unclear and inconsistent in its application. Recent legislation, such as RLUIPA and RFRA, has significantly improved the state of religious freedom in prisons. However, two U.S. Supreme Court decisions on RLUIPA—Cutter v. Wilkinson and Holt v. Hobbs—have led to some confusion among lower courts regarding the level of deference that should be afforded to prison officials. Although Holt demonstrated a hard look approach to strict scrutiny, it did nothing …
The Tesla Meets The Fourth Amendment, Adam M. Gershowitz
The Tesla Meets The Fourth Amendment, Adam M. Gershowitz
BYU Law Review
Can police search a smart car’s computer without a warrant? Although the Supreme Court banned warrantless searches of cell phones incident to arrest in Riley v. California, the Court left the door open for warrantless searches under other exceptions to the warrant requirement. This is the first article to argue that the Fourth Amendment’s automobile exception currently permits the police to warrantlessly dig into a vehicle’s computer system and extract vast amounts of cell phone data. Just as the police can rip open seats or slash tires to search for drugs under the automobile exception, the police can warrantlessly extract …
The Trouble With Time Served, Kimberly Kessler Ferzan
The Trouble With Time Served, Kimberly Kessler Ferzan
BYU Law Review
Every jurisdiction in the United States gives criminal defendants "credit" against their sentence for the time they spend detained pretrial. In a world of mass incarceration and overcriminalization that disproportionately impacts people of color, this practice appears to be a welcome mechanism for mercy and justice. In fact, how ever, crediting detainees for time served is perverse. It harms the innocent. A defendant who is found not guilty, or whose case is dismissed, gets nothing. Crediting time served also allows the state to avoid internalizing the full costs of pretrial detention, thereby making overinclusive detention standards less expensive. Finally, crediting …
Searches Without Suspicion: Avoiding A Four Million Person Underclass, Tonja Jacobi, Addie Maguire
Searches Without Suspicion: Avoiding A Four Million Person Underclass, Tonja Jacobi, Addie Maguire
BYU Law Review
In Samson v. California, the Supreme Court upheld warrantless, suspicionless searches for parolees. That determination was controversial both because suspicionless searches are, by definition, anathema to the Fourth Amendment, and because they arguably undermine parolees’ rehabilitation. Less attention has been given to the fact that the implications of the case were not limited to parolees. The opinion in Samson included half a sentence of dicta that seemingly swept probationers into its analysis, implicating the rights of millions of additional people in the United States. Not only is analogizing parolees and probationers not logically sound because the two groups differ in …
Rights Without A Remedy: Detained Immigrants And Unlawful Conditions Of Confinement, Brandon Galli-Graves
Rights Without A Remedy: Detained Immigrants And Unlawful Conditions Of Confinement, Brandon Galli-Graves
BYU Law Review
No abstract provided.
The Parishioner & The Probationer: Make Probation Non-Profit Again, James Rex Lee
The Parishioner & The Probationer: Make Probation Non-Profit Again, James Rex Lee
BYU Law Review
No abstract provided.
Linguistic Estoppel: A Custodial Interrogation Subject’S Reliance On Traditional Language Customs When Facing Unknown Expectations For Legally Efficacious Speech, Taylor J. Smith
BYU Law Review
For various reasons, speakers often communicate indirectly, hiding their words’ true meaning beneath an apparent surface meaning. For example, a woman trying to brush off her co-worker’s date invitation might respond, “I have to prepare for a presentation tomorrow.” While the words’ surface meaning doesn’t relate to the date invitation, the hearer usually understands the underlying message—that is to say, the words’ function differs from their form. However, because the law’s language ideology requires directness and surface-level meaning, lay-speaking interrogation subjects often have difficulty effectively invoking their Miranda rights. Because the legal system’s search for determinacy often results in reliance …
The Costs Of Separation: Incarcerated Mothers And The Socioeconomic Benefits Of Community-Based Alternatives For Nonviolent Offenders, Rahgan Jensen
The Costs Of Separation: Incarcerated Mothers And The Socioeconomic Benefits Of Community-Based Alternatives For Nonviolent Offenders, Rahgan Jensen
Brigham Young University Journal of Public Law
No abstract provided.
Compelling Suspects To Unlock Their Phones: Recommendations For Prosecutors And Law Enforcement, Carissa A. Uresk
Compelling Suspects To Unlock Their Phones: Recommendations For Prosecutors And Law Enforcement, Carissa A. Uresk
BYU Law Review
No abstract provided.
Pregnancy During Incarceration: A “Serious” Medical Need, Rahgan Jensen
Pregnancy During Incarceration: A “Serious” Medical Need, Rahgan Jensen
BYU Law Review
No abstract provided.
Re-Victimization Of Domestic Violence Victims, Angela De La Garza
Re-Victimization Of Domestic Violence Victims, Angela De La Garza
Brigham Young University Journal of Public Law
No abstract provided.
Optimal Deterrence And The Preference Gap, Brook Gotberg
Optimal Deterrence And The Preference Gap, Brook Gotberg
BYU Law Review
It is generally understood that the way to discourage particular behavior in individuals is to punish that behavior, on the theory that rational individuals seek to avoid punishment. Laws aimed at deterring behavior operate on the assumption that increasing the likelihood of punishment, the severity of punishment, or both, will decrease the behavior. The success of these laws is evaluated by how much the targeted behavior decreases. The law of preferential transfers—which punishes creditors who have been paid prior to a bankruptcy filing at the expense of other, unpaid creditors—has been defended on the grounds that it deters a race …
Omg - Not Something To Lol About: The Unintended Results Of Disallowing Warrantless Searches Of Cell Phones Incident To A Lawful Arrest Comments, Parker Jenkins
Omg - Not Something To Lol About: The Unintended Results Of Disallowing Warrantless Searches Of Cell Phones Incident To A Lawful Arrest Comments, Parker Jenkins
Brigham Young University Journal of Public Law
No abstract provided.
Criminals Behind The Veil: Political Philosophy And Punishment, Chad Flanders
Criminals Behind The Veil: Political Philosophy And Punishment, Chad Flanders
Brigham Young University Journal of Public Law
No abstract provided.
Hands Up At Home: Militarized Masculinity And Police Officers Who Commit Intimate Partner Abuse, Leigh Goodmark
Hands Up At Home: Militarized Masculinity And Police Officers Who Commit Intimate Partner Abuse, Leigh Goodmark
BYU Law Review
The deaths of Michael Brown and Eric Garner and the almost daily news stories about abusive and violent police conduct are currently prompting questions about the appropriate use of force by police officers. Moreover, the history of police brutality directed towards women is well-documented. Most of that literature, however, captures the violence that police do in their public capacity as officers of the state. This Article examines the violence and abuse perpetrated by police in their private lives, against their intimate partners. Although the public and private overlap, the power and training provided to police officers by the state makes …
Violence And Police Diversity: A Call For Research, Mary D. Fan
Violence And Police Diversity: A Call For Research, Mary D. Fan
BYU Law Review
Deaths and protests in places where predominantly-white police forces patrol majority-black communities have focused the national spotlight on concerns over unrepresentative police forces. Responding to the controversy, mayors and police chiefs in cities across the nation are announcing goals to hire more minority officers. But does police diversification actually reduce the risk of violence in police encounters? This Article addresses this timely question of legal and practical import to communities seeking to prevent violence and pursue policies that survive constitutional scrutiny.
Drawing on restricted-access Centers for Disease Control data and social-psychological insights, this Article shows that there is a good …
Trespass And Deception, Laurent Sacharoff
Trespass And Deception, Laurent Sacharoff
BYU Law Review
Police routinely use deception to get into people’s homes without warrant or probable cause. They may pose as UPS delivery persons or homebuyers, or they may say they are looking for a kidnapping victim or a pedophile, when really they are looking for drugs or guns. Recent years have brought hundreds of reported decisions concerning such police ruses.
When the police lie about their identity or their purpose to enter a home, as when they pose as a homebuyer, the courts surprisingly, but routinely, approve these deceptions under the Fourth Amendment. Such intrusions, the courts reason, do not violate a …
Imprisonment Inertia And Public Attitudes Toward "Truth In Sentencing", Michael O'Hear, Darren Wheelock
Imprisonment Inertia And Public Attitudes Toward "Truth In Sentencing", Michael O'Hear, Darren Wheelock
BYU Law Review
No abstract provided.
Eric Holder's Recent Curtailment Of Mandatory Minimum Sentencing, Its Implications, And Prospects For Effective Reform, Alan Dahl
Brigham Young University Journal of Public Law
No abstract provided.
Can Retributivism Be Saved?, Chad Flanders
Can Retributivism Be Saved?, Chad Flanders
BYU Law Review
Retributive theory has long held pride of place among theories of criminal punishment in both philosophy and in law. It has seemed, at various times, either much more intuitive, or rationally persuasive, or simply more normatively right than other theories. But retributive theory is limited, both in theory and practice, and in many of its versions is best conceived not as a theory of punishment in its own right, but instead as shorthand for a set of constraints on the exercise of punishment. Whether some version of retributive theory is a live possibility in the contemporary world remains very much …
The Heck Conundrum: Why Federal Courts Should Not Overextend The Heck V. Humphrey Preclusion Doctrine, Lyndon Bradshaw
The Heck Conundrum: Why Federal Courts Should Not Overextend The Heck V. Humphrey Preclusion Doctrine, Lyndon Bradshaw
BYU Law Review
No abstract provided.
Taking Mistakes Seriously, Paul J. Larkin Jr.
Taking Mistakes Seriously, Paul J. Larkin Jr.
Brigham Young University Journal of Public Law
Part I of this article discusses the principle that mistake or ignorance of the law is no excuse. It is settled law that no one can defend against a criminal charge on the grounds that he did not intend to flout the law and, at worst, made only a reasonable, honest mistake as to what he was free to do. Part II examines several areas in which the law does precisely the opposite by repeatedly manifesting a willingness to forgive reasonable mistakes by one or more actors in the criminal justice system. Part III then asks whether the developments discussed …
Walking A Thin Blue Line: Balancing The Citizen's Right To Record Police Officers Against Officer Privacy, Rebecca G. Van Tassell
Walking A Thin Blue Line: Balancing The Citizen's Right To Record Police Officers Against Officer Privacy, Rebecca G. Van Tassell
BYU Law Review
No abstract provided.
An "Objectively Reasonable" Criticism Of The Doctrine Of Qualified Immunity In Excessive Force Cases Brought Under 42 U.S.C. § 1983, Philip Sheng
Brigham Young University Journal of Public Law
No abstract provided.
Construing The Outer Limits Of Sentencing Authority: A Proposed Bright-Line Rule For Noncapital Proportionality Review, Kevin White
BYU Law Review
No abstract provided.
Modifying The Restrictions On Sentence Modification: United States V. Cobb, Jackie Bosshardt
Modifying The Restrictions On Sentence Modification: United States V. Cobb, Jackie Bosshardt
BYU Law Review
No abstract provided.
Substantially Burdened, Substantially In Conflict, Or Substantially Unneeded? A Discussion Of Abdulhaseeb V. Calbone, D. Evan Pack
Substantially Burdened, Substantially In Conflict, Or Substantially Unneeded? A Discussion Of Abdulhaseeb V. Calbone, D. Evan Pack
BYU Law Review
No abstract provided.
Tase Me One More Time: An Analysis Of The Ninth Circuit’S Interpretation Of The Fourth Amendment, Qualified Immunity, And Tasers In Brooks V. City Of Seattle, Joseph G. Walker
Tase Me One More Time: An Analysis Of The Ninth Circuit’S Interpretation Of The Fourth Amendment, Qualified Immunity, And Tasers In Brooks V. City Of Seattle, Joseph G. Walker
BYU Law Review
No abstract provided.
Sidestepping Deference: How United States V. Ressam Encourages Overly Stringent Review Of Sentencing Decisions, Joseph Leavitt
Sidestepping Deference: How United States V. Ressam Encourages Overly Stringent Review Of Sentencing Decisions, Joseph Leavitt
BYU Law Review
No abstract provided.
Cops, Robbers, And Search Engines: The Questionable Role Of Criminal Law In Contributory Infringement Doctrine, Mark Bartholomew
Cops, Robbers, And Search Engines: The Questionable Role Of Criminal Law In Contributory Infringement Doctrine, Mark Bartholomew
BYU Law Review
No abstract provided.