Law Commons^™

Constitutionally Tailoring Punishment, Richard A. Bierschbach, Stephanos Bibas

All Faculty Scholarship

Since the turn of the century, the Supreme Court has begun to regulate non-capital sentencing under the Sixth Amendment in the Apprendi line of cases (requiring jury findings of fact to justify sentence enhancements) as well as under the Eighth Amendment in the Miller and Graham line of cases (forbidding mandatory life imprisonment for juvenile defendants). Though both lines of authority sound in individual rights, in fact they are fundamentally about the structures of criminal justice. These two seemingly disparate lines of doctrine respond to structural imbalances in non-capital sentencing by promoting morally appropriate punishment judgments that are based on …

The Illusory Eighth Amendment, John F. Stinneford

UF Law Faculty Publications

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 …

New Paths For The Court: Protections Afforded Juveniles Under Miranda; Effective Assistance Of Counsel; And Habeas Corpus Decisions Of The Supreme Court’S 2010/2011 Term, Richard Klein

Richard Daniel Klein

No abstract provided.

Symposium Foreword: Bombshell Or Baby Step? The Ramifications Of Miller V. Alabama For Sentencing Law And Juvenile Crime Policy, Paul J. Litton

Faculty Publications

This short essay, which serves as the Symposium Foreword, argues that the rationale of Miller is incoherent insofar as it permits juvenile LWOP sentences and that the Court misidentifies the foundational principle of Roper. First, in banning mandatory juvenile LWOP sentences, the Court invokes Woodson, which bans mandatory death sentences. The Court maintains that Woodson, from its capital jurisprudence, applies because juvenile LWOP is “akin to the death penalty” for juveniles. But if the Court’s capital jurisprudence is binding based on that equivalence, Roper should imply that juvenile LWOP, like the death penalty, is unconstitutional for juveniles. This essay briefly …

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

UF Law Faculty Publications

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, …

Transforming Juvenile Justice: Making Doctrine Out Of Dicta In Graham V. Florida, Jason Zolle

Michigan Law Review First Impressions

In the late 1980s and 1990s, many state legislatures radically altered the way that their laws treated children accused of crimes. Responding to what was perceived of as an epidemic of juvenile violence, academics and policymakers began to think of child criminals as a "new breed" of incorrigible "superpredators." States responded by making it easier for prosecutors to try and sentence juveniles as adults, even making it mandatory in some circumstances. Yet in the past decade, the Supreme Court handed down four opinions that limit the states' ability to treat children as adults in the justice system. Roper v. Simmons …

An Anachronism Too Discordant To Be Suffered: A Comparative Study Of Parliamentary And Presidential Approaches To Regulation Of The Death Penalty, Derek R. Verhagen

Derek R VerHagen

It is well-documented that the United States remains the only western democracy to retain the death penalty and finds itself ranked among the world's leading human rights violators in executions per year. However, prior to the Gregg v. Georgia decision in 1976, ending America's first and only moratorium on capital punishment, the U.S. was well in line with the rest of the civilized world in its approach to the death penalty. This Note argues that America's return to the death penalty is based primarily on the differences between classic parliamentary approaches to regulation and that of the American presidential system. …

Essay: Talking About Cruelty: The Eighth Amendment And Juvenile Offenders After Miller V. Alabama, Samuel H. Pillsbury

Loyola of Los Angeles Law Review

No abstract provided.

Federal Incarceration By Contract In A Post-Minneci World: Legislation To Equalize The Constitutional Rights Of Prisoners, Allison L. Waks

University of Michigan Journal of Law Reform

In the 2012 case Minneci v. Pollard, the United States Supreme Court held that federal prisoners assigned to privately-run prisons may not bring actions for violations of their Eighth Amendment right against cruel and unusual punishment and may instead bring actions sounding only in state tort law. A consequence of this decision is that the arbitrary assignment of some federal prisoners to privately-run prisons deprives them of an equal opportunity to vindicate this federal constitutional right and pursue a federal remedy. Yet all federal prisoners should be entitled to the same protection under the United States Constitution-regardless of the type …

Graham V. Florida: How The Supreme Court's Rationale Encourages Reform Of The Juvenile Justice System Through Alternative Dispute Resolution Strategies, Heather Hojnacki

Pepperdine Dispute Resolution Law Journal

The article presents information on the reforms in the juvenile justice system of the U.S. through alternative dispute resolution-based strategies which has been illustrated with the U.S. Supreme Court cases Roper v. Simmons, and Graham v. Florida. It discusses rationale of the U.S. Supreme Court in Graham case and analyzes Graham's current and future impact. A proportionality standard expressed in legislative enactments and state practice was applied by the U.S. Supreme Court in Graham case.

An Analysis Of The Death Penalty Jurisprudence Of The October 2007 Supreme Court Term, Richard Klein

Touro Law Review

No abstract provided.

Criminal Procedure Decisions From The October 2007 Term, Susan N. Herman

Touro Law Review

No abstract provided.

Sentencing The Mentally Retarded To Death: An Eighth Amendment Analysis, John H. Blume, David Bruck

David I. Bruck

Today, on death rows across the United States, sit a number of men with the minds of children. These people are mentally retarded. Typical of these individuals is Limmie Arthur, who currently is imprisoned at Central Correctional Institution in Columbia, South Carolina. Although Arthur is twenty-eight years old, all the mental health professionals who have evaluated him, including employees of the South Carolina Department of Corrections, agree he has the mental capacity of approximately a 10-year-old child. Arthur was convicted and sentenced to death for the murder of a neighbor. At his first trial, his court appointed attorneys did not …

A State's Obligation To Fund Hormonal Therapy And Sex-Reassignment Surgery For Prisoners Diagnosed With Gender Identity Disorder, Rena M. Lindevaldsen

Faculty Publications and Presentations

This article explores whether a state law imposing a flat ban on the use of funds to provide cross-gender hormones or sex-reassignment surgery for prisoners diagnosed with GID satisfies the Eighth Amendment standard of deliberately indifferent to serious medical needs. In other words, the issue is whether it constitutes cruel and unusual punishment for a state to refuse to provide hormones or sex-reassignment surgery to GID prisoners. The district court in Kosilek v. Spencer1 held that it does: the state violated the Eighth Amendment in providing feminizing hormones to Kosilek but refusing to provide him sex-reassignment surgery. Part I …

"Off With His __": Analyzing The Sex Disparity In Chemical Castration Sentences, Zachary Edmonds Oswald

Michigan Journal of Gender & Law

Societies around the world have performed castration, in its various forms, on their male and female members for thousands of years, for numerous reasons. Even within the United States, prisoners have been sentenced to castration (as a form of punishment or crime prevention) since the early twentieth century. In recent years, legislatures have perpetuated this practice but with a modern twist. Now, states use chemical injections to castrate their inmates. It turns out, however, that systemic problems plague the chemical castration sentencing regime. These problems arise from the nature of the crimes eligible for chemical castration sentences, the manner of …

From Weems To Graham: The Curious Evolution Of Evolving Standards Of Decency, Zachary Baron Shemtob

Zachary Shemtob

Since the 1958 case of Trop v. Dulles, the Supreme Court has held that grossly disproportionate punishments are cruel and unusual if they violate “the evolving standards of decency of a maturing society.” Traditionally, this was interpreted as prohibiting capital sentences for certain types of crimes and classes of offenders. More recently, in Graham v. Florida, the Court applied evolving standards to incarceration, banning the sentencing of juveniles who committed non-homicide crimes to life without parole.

This article breaks the Court’s understanding of evolving standards of decency into distinct periods. In each period the justices encountered a host of novel …

The Unconstitutional Prosecution Of Controlled Substance Metabolites Under Utah Code § 41-6a-517, Joshua C. Snow

Utah OnLaw: The Utah Law Review Online Supplement

This Article achieves three main goals. First, it explains and explores Utah’s per se metabolite laws against the backdrop of the national landscape of metabolite laws. Second, this Article provides a concise explanation regarding the science of drug metabolites. Finally, this Article presents two constitutional challenges to Utah Code section 41-6a-517. The first challenge argues that the statute creates an impermissible status offense in violation of the Eighth Amendment to the U.S. Constitution. The second challenge argues that the statute violates Utah’s Uniform Operation of Laws Clause found in the Utah Constitution. This Article concludes by asking Utah state courts …

A Good Enough Reason: Addiction, Agency And Criminal Responsibility, Stephen J. Morse

All Faculty Scholarship

The article begins by contrasting medical and moral views of addiction and how such views influence responsibility and policy analysis. It suggests that since addiction always involves action and action can always be morally evaluated, we must independently decide whether addicts do not meet responsibility criteria rather than begging the question and deciding by the label of ‘disease’ or ‘moral weakness’. It then turns to the criteria for criminal responsibility and shows that the criteria for criminal responsibility, like the criteria for addiction, are all folk psychological. Therefore, any scientific information about addiction must be ‘translated’ into the law’s folk …

The Anomaly Of Executions: The Cruel And Unusual Punishments Clause In The 21st Century, John Bessler

All Faculty Scholarship

This Article describes the anomaly of executions in the context of the U.S. Supreme Court’s Eighth Amendment jurisprudence. While the Supreme Court routinely reads the Cruel and Unusual Punishments Clause to protect prisoners from harm, the Court simultaneously interprets the Eighth Amendment to allow inmates to be executed. Corporal punishments short of death have long been abandoned in America’s penal system, yet executions — at least in a few locales, heavily concentrated in the South — persist. This Article, which seeks a principled and much more consistent interpretation of the Eighth Amendment, argues that executions should be declared unconstitutional as …

Asking The First Question: Reframing Bivens After Minneci, Alexander A. Reinert, Lumen N. Mulligan

Faculty Works

In Minneci v. Pollard, decided in January 2012, the Supreme Court refused to recognize a Bivens v. Six Unknown Federal Narcotics Agents suit against employees of a privately run federal prison because state tort law provided an alternative remedy, thereby adding a federalism twist to what had been strictly a separation-of-powers debate. In this Article, we show why this new state-law focus is misguided. We first trace the Court’s prior alternative-remedies-to-Bivens holdings, illustrating that this history is one narrowly focused on separation of powers at the federal level. Minneci’s break with this tradition raises several concerns. On a doctrinal level, …

Asking The First Question: Reframing Bivens After Minneci, Alexander A. Reinert, Lumen N. Mulligan

Articles

In Minneci v. Pollard, decided in January 2012, the Supreme Court refused to recognize a Bivens v. Six Unknown Federal Narcotics Agents suit against employees of a privately run federal prison because state tort law provided an alternative remedy, thereby adding a federalism twist to what had been strictly a separation-of-powers debate. In this Article, we show why this new state-law focus is misguided. We first trace the Court’s prior alternative-remedies-to-Bivens holdings, illustrating that this history is one narrowly focused on separation of powers at the federal level. Minneci’s break with this tradition raises several concerns. On a …

Prison Segregation: Symposium Introduction And Preliminary Data On Racial Disparities, Margo Schlanger

Articles

For this Introduction, I undertake to look a bit more broadly at recent data. The best sources of demographic information about prisoners are the various surveys and censuses conducted by the U.S. Department of Justice Bureau of Justice Statistics (BJS). While no BJS publication directly addresses the issue, and no BJS dataset allows its full analysis, it is possible to glean something from the most recent BJS prison census, the 2005 Census of State and Federal Adult Correctional Facilities.

Death And Rehabilitation, Meghan J. Ryan

Faculty Journal Articles and Book Chapters

While rehabilitation is reemerging as an important penological goal, the Supreme Court is eroding the long-revered divide between capital and non-capital sentences. This raises the question of whether and how rehabilitation applies in the capital context. Courts and scholars have long concluded that it does not — that death is completely irrelevant to rehabilitation. Yet, historically, the death penalty in this country has been imposed in large part to induce the rehabilitation of offenders’ characters. Additionally, there are tales of the worst offenders transforming their characters when they are facing death, and several legal doctrines are based on the idea …

Certainty In A World Of Uncertainty: Proposing Statutory Guidance In Sentencing Juveniles To Life Without Parole., Sonia Mardarewich

The Scholar: St. Mary's Law Review on Race and Social Justice

In Miller v. Alabama, the United States Supreme Court held that mandatory life sentences without parole imposed upon juveniles was unconstitutional. The Court reasoned that the sentence was cruel and unusual punishment in violation of the Eighth Amendment. The Court, however, did not hold it was unconstitutional to sentence a juvenile to life without parole if there was “transferred intent” or “reckless disregard.” Nonetheless, the Court effectively abolished state discretion and required sentencing courts to consider an offender’s youth and attendant characteristics as mitigating circumstances. The Court, however, did not specify what sentencing guidelines should dictate. Thus, states are now …

Plata V. Brown And Realignment: Jails, Prisons, Courts, And Politics, Margo Schlanger

Articles

The year 2011 marked an important milestone in American institutional reform litigation. That year, a bare majority of the U.S. Supreme Court, in an opinion in Brown v. Plata by Justice Anthony Kennedy, affirmed a district court order requiring California to remedy its longstanding constitutional deficits in prison medical and mental health care by reducing prison crowding. Not since 1978 had the Court ratified a lower court's crowding-related order in a jail or prison case, and the order before the Court in 2011 was fairly aggressive; theoretically, it could have (although this was never a real prospect) induced the release …

Forgetting Furman: Arbitrary Death Penalty Schemes Across The Nation, Sarah A. Mourer

Sarah Mourer

The legislature has forgotten the lessons taught by Furman v. Georgia and today, the “untrammeled discretion” once held by juries is now held by the judiciary. Many death penalty sentencing procedures are unconstitutional, in violation of both the Sixth and Eighth Amendments, because the judge alone is authorized to sentence the defendant to life or death despite being uninformed of the jury’s factual findings. Pursuant to the Sixth Amendment as articulated in Ring v. Arizona, the factual findings upon which a death sentence rests must be found by the jury, and only the jury. Nevertheless, many jurisdictions permit the judge …